The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Calvin Day Jr., M.D. … sued the Federation of State Medical Boards of the United States, Inc. … for defamation and tortious interference with prospective business relations. In response, the Federation moved to dismiss Day's lawsuit pursuant to the Texas Citizens Participation Act …. The trial court granted the Federation's motion to dismiss and awarded it $83,292.50 in attorney's fees. Day filed this appeal….
The Texas State Medical Board … is a state agency that regulates the practice of medicine in Texas.. In June 2011, the Board temporarily suspended Day's medical license and commenced administrative proceedings against him. The suspension was prompted by complaints of "boundary violations" made by six individuals, including several of Day's patients, and Day's arrest and indictment for sexual assault arising from one of these complaints. A jury convicted Day of sexual assault, but the conviction was set aside when the trial court granted a new trial.
The criminal charges against Day were eventually dismissed. In addition, four of the six complainants refused to cooperate in the Board's administrative investigation. By early 2017, only one of the complaints remained pending before the State Office of Administrative Hearings. On March 3, 2017, Day and the Board entered into an "Agreed Order," which resolved the remaining administrative complaint, lifted the suspension of Day's medical license, and imposed numerous restrictions on Day's practice of medicine.
The Federation maintains a website that provides physician data, including sanctions reported by state licensing boards. The part of the Federation's website known as the "Physician Data Center" contains a profile for each physician, including his or her licensure history, education, training, and biographical information. The Federation received the Agreed Order from the Texas Medical Board and, under the heading, "Board Actions," posted the following information on its website pertaining to Day:"
"Reporting Entity: Texas Medical Board
"Date of Order: 3/3/2017
"Form of Order: Agreed Order
"Action(s): RESTRICTIONS/LIMITATIONS PLACED ON MEDICAL LICENSE/PRACTICE
"Basis: Unprofessional Conduct"
Day complained to the Federation that the "unprofessional conduct" statement was false and insisted that it be removed from his profile. Day asserted that the restrictions the Board placed on his return to practice were based solely on the fact that he had not practiced for six years because of his suspension.
The Federation responded to Day's complaint by asking the Board if the "unprofessional conduct" statement was accurate. The Board advised the Federation that the "unprofessional conduct" statement was "a true, fair, and accurate description of the Agreed Order." The Federation declined to remove the statement from its website. Thereafter, Day sued the Federation for defamation and tortious interference with prospective business relations….
In arguing that the TCPA [the Texas Citizens Participation Act, Texas's anti-SLAPP statute] does not apply to his claims, Day argues that "[t]ypically, SLAPP suits are filed by large businesses and other deep-pocketed entities to silence criticism aimed at them by average citizens," but in this case the "corporate goliath seeking to suppress the [First] [A]mendment rights of a small, helpless [p]laintiff simply does not exist." However, Day misstates the criteria for determining the applicability of the TCPA.
To establish the applicability of the TCPA, the Federation was required to prove, by a preponderance of the evidence, that Day's lawsuit was based on, related to, or was in response to the Federation's exercise of the right of free speech. The pleadings and the affidavits establish that Day's suit was based on a communication—a statement made on the Federation's website—and that this communication was made in connection with a matter of public concern—a state licensing board's action concerning Day's medical license. Therefore, the Federation satisfied its initial burden to show the applicability of the TCPA….
Because the Federation met its initial burden to show the applicability of the TCPA, the burden shifted to Day to establish "by clear and specific evidence a prima facie case for each essential element" of his claims …. [including] the falsity of the "unprofessional conduct" statement….
The Agreed Order states that the "charges" before the Board were allegations that Day had "engaged in unprofessional conduct including boundary violations with respect to six women, several of whom were patients." It further states that a formal complaint was filed with the State Office of Administrative Hearings, but that before proceeding to a hearing on the merits, "the parties engaged in negotiations and reached this settlement." The Agreed Order contains numerous findings, including: (1) that Day was convicted of one count of sexual assault; (2) that Day's conviction was overturned based on misconduct by both the defense attorneys and the prosecutors; (3) that Day's criminal case was eventually dismissed when the complainants refused to testify at trial; (4) that four of the five complainants refused to cooperate in the administrative case; (5) that Day was still the subject of one formal complaint at the State Office of Administrative Hearings "regarding allegations of unprofessional conduct in his medical practice;" (6) that the Board considered "[m]itigating [f]actors" in determining "appropriate sanctions in this matter," and that (7) Day "agree[d] to the entry of this Agreed Order" "[t]o avoid further investigation, hearings, and the expense and inconvenience of litigation."
The Agreed Order also contains "Conclusions of Law," some of which cite to Chapter 164 of the Occupations Code, the Texas statutory scheme governing disciplinary actions for physicians. Among other things, the conclusions of law state that Chapter 164 "authorizes the Board to take disciplinary action against [Day] based upon [Day's] unprofessional or dishonorable conduct" and "authorizes the Board to impose a range of disciplinary actions against a person for violations of the [Occupations Code]."
The Agreed Order lifts the suspension of Day's medical license under certain terms and conditions. Specifically, the Agreed Order requires Day to participate in a proctorship, whereby his medical work is supervised by another physician for approximately six months. The supervising physician is required to report to the Board about whether Day has the skills, abilities, and knowledge to return to the practice of medicine. The Agreed Order also requires Day (1) to limit his medical practice to a group or institutional setting, (2) to continue the practice of having at least one other health care professional in the room when seeing or treating patients, (3) to keep a log of his patient interactions, (4) to have the other health care professional contemporaneously initial the log entries, and (5) to provide a copy of the Agreed Order to all health care entities with which he affiliates or seeks to affiliate.
Day argues the Agreed Order itself establishes the falsity of the Federation's "unprofessional conduct" statement. Emphasizing that the Agreed Order does not contain an explicit finding that he engaged in "unprofessional conduct," Day contends the Agreed Order shows that the restrictions imposed on him had "nothing to do with any misconduct." Day further contends the Agreed Order shows that the purpose of the restrictions imposed on him was to ensure that his "skills had not atrophied during his hiatus from practice." We disagree.
Both the language and the effect of the Agreed Order support the Federation's statement that the "basis" of the order was "unprofessional conduct." The Agreed Order expressly states that it is the result of a settlement between Day and the Board and that it resolves the remaining complaint that Day had engaged in "unprofessional conduct including boundary violations." Additionally, the Agreed Order explains that the Board considered "mitigating factors" in deciding "appropriate sanctions" for Day. The use of the word "sanctions" indicates that the purpose of the Agreed Order, at least in part, was to administer disciplinary action against Day.
Furthermore, in addition to requiring Day to be supervised by another physician while performing medical procedures and requiring the supervising physician to provide feedback to the Board, the Agreed Order imposes numerous other restrictions on Day's practice of medicine, including requiring Day to have another health professional in the room while seeing patients, requiring Day to keep a log of his patient interactions, and requiring Day to practice medicine only in a group or institutional setting. Finally, the Agreed Order operates to resolve the remaining "unprofessional conduct" charge against Day, lift the temporary suspension of Day's license, and impose restrictions on Day's practice of medicine.
We conclude the Agreed Order does not demonstrate, by clear and specific evidence, the falsity of the Federation's "unprofessional conduct" statement. To the contrary, when considered in its entirety, the Agreed Order shows that the Federation's statement that the "basis" of the order was "unprofessional conduct" was substantially true.
Additionally, the evidence in this case includes the affidavit of the Board's interim executive director, Freshour, who testified that the Board suspended Day's medical license and began conducting a disciplinary review of Day based on allegations of unprofessional conduct; that this review lasted several years; that the Board and Day entered into the Agreed Order on March 3, 2017; that the Board forwarded the Agreed Order to the Federation; and that after Day complained about the "unprofessional conduct" statement on the Federation's website, the Board advised the Federation that this statement was "a true, fair, and accurate description of the Agreed Order."
After examining the pleadings and the evidence, we conclude that Day did not present clear and specific evidence sufficient as a matter of law to establish the falsity of the "unprofessional conduct" statement. We hold that Day failed to meet his burden to establish a prima facie case regarding the falsity of the challenged statement….
[W]e [also] hold that the trial court did not abuse its discretion in awarding the Federation $83,292.50 in attorney's fees. [Details omitted.-EV]
I had first learned of the Day matter, by the way, when researching attempts to use expungement orders to try to suppress media reports of arrests, prosecutions, or convictions. Such expungement orders are generally addressed just to the government, and order government agencies to destroy or seal their own records; but some people have tried to apply them to private entities as well (see, e.g., the Derek Collier Thorworth case and the Damon Barone case).
Dr. Day had tried the same, including in his petition four media outlets—the San Antonio Express News, KSAT 12, WOAI News 4, and KENS 5—at the end of a long list of "agencies" and "entities" that "may have records or files pertaining to Petitioner in connection with the arrest and/or alleged offense described above, and which are subject to expunction." But he eventually dropped the petition, after the Texas Medical Board and the Texas Department of Public Safety objected to the proposed expunction of the records in their possession.