Appeal from the 334th District Court Harris County, Texas
Trial Court Case No. 2015-77483
consists of Justices Massengale, Brown, and Huddle.
40 years of employment at Memorial Hermann hospital, Dr.
Samia Khalil sued Memorial Hermann Health System for
defamation, tortious interference with an existing contract,
conspiracy, and intentional infliction of emotional distress.
Khalil, age 77, also sued for age discrimination. Memorial
Hermann sought to dismiss several of her claims under summary
dismissal procedures found in the Texas Citizens
Participation Act (TCPA). In turn, Khalil filed a TCPA motion to
dismiss Memorial Hermann's TCPA motion. Both motions were
denied by operation of law.
issues, Memorial Hermann argues that it was entitled to
dismissal of Khalil's challenged claims. Through a
cross-appeal, Khalil argues that, while Memorial
Hermann's motion was properly denied, her TCPA
counter-motion was denied in error and that she is,
therefore, entitled to recover attorney's fees.
reverse the denial of Memorial Hermann's motion, affirm
the denial of Khalil's motion, and remand for further
Samia Khalil worked as a pediatric anesthesiologist at
Memorial Hermann hospital for four decades. Along with those
duties, she taught pediatric anesthesiology at The University
of Texas Health Science Center at Houston (UT Health). UT
Health is not a defendant in Khalil's lawsuit. According
to her petition, Dr. Khalil was approached in 2014 by Dr.
Carin Hagberg-who was both the UT Health chair of the
anesthesia department and the Memorial Hermann chief of
anesthesiology-about "vague complaints" made to
"hospital administration" about Dr. Khalil. Hagberg
and Khalil agreed that Khalil would enter into a UT Health
corrective action plan.
corrective action plan was not completed before the deadline
for Khalil to submit a complete application for
recredentialing at Memorial Hermann. Citing her failure to
submit a complete application by the deadline-versus a
determination that she was not competent for
recredentialing-Memorial Hermann announced that Khalil's
credentials had expired, which meant that she was no longer
able to practice medicine there. Khalil sued Memorial
is a more detailed account of the events leading up to
Khalil's departure from Memorial Hermann and of the
Memorial Hermann and UT Health documents created during those
two entities' investigations into Khalil's
competence, which she submitted to the trial court.
Khalil's corrective action plan and the
investigations into her competence
"anecdotal" statements questioning Khalil's
patient care, compliance with hospital procedures, and
collegiality, Hagberg approached Khalil in 2014 to establish
a corrective action plan. The corrective action plan was
entered between Khalil and UT Health, not Memorial Hermann.
It required Khalil to be assessed by UT Health's internal
Employee Assistance Program, follow any EAP recommendations,
participate in a chart review of her recent cases, and comply
with applicable standards and guidelines. UT Health
prohibited Khalil from "faculty clinical care" of
patients while she was taking action pursuant to the
corrective action plan and it was assessing her EAP
compliance and chart audit. The UT Health corrective action
plan began just a few weeks before Khalil's Memorial
Hermann recredentialing deadline: December 31, 2014.
Health informed Memorial Hermann's credentials committee
chair, Mark Farnie, of Khalil's corrective action plan.
As the December 2014 deadline drew near, Memorial Hermann
informed Khalil that she would be given only a limited,
13-month renewal because of the on-going plan and because
the hospital wanted to engage her "in quality and
patient safety activities and to promote collegial working
relationships in the clinical areas." Therefore, her
credentials would need to be renewed again or they would
expire at the end of January 2016.
met with a UT Health EAP representative, as required by her
corrective action plan. That representative recommended that
Khalil undergo an outside assessment. Khalil refused to
participate, stating in a letter dated November 30, 2015 that
the process was "flawed by design and intrinsically
unfair." Khalil eventually agreed to participate in an
outside assessment, but that assessment was not completed
before the January 2016 recredentialing deadline. As a
result, she did not have a completed application by the
deadline. Memorial Hermann then declared that Khalil's
credentials had expired because she failed to complete her
renewal application by the deadline.
challenges Memorial Hermann's characterization and
asserts that Memorial Hermann's intentional delay tactics
caused her to not meet the deadlines. Khalil also asserts
that Memorial Hermann coordinated with UT Health to have UT
Health remove her from clinical care, which allowed Memorial
Hermann to avoid the procedural protections found in its
medical staff bylaws. She asserts that she was denied notice,
hearing, and due process. Khalil describes the chain of
events as "orchestrated" and claims the two
entities placed her in a "catch-22" that prevented
the renewal of her credentials.
before her credentials expired, Khalil sued Memorial Hermann
for various claims, including defamation, based on statements
made about her during Memorial Hermann's and UT
Health's investigations into her competence, including
privileged peer-review statements made by various committees.
Statements made about the on-going investigations
into Khalil's competence
the statements underlying Khalil's suit are
communications by UT Health, not by Memorial Hermann. These
communications are between UT Health employees, confirming
that UT Health had placed limitations on Khalil's
clinical care and addressing whether those limitations
prevented her from continuing with her medical research
communications were written by Memorial Hermann and directly
address Khalil's competence. For example, in a December
8, 2015 letter to Khalil from Memorial Hermann's chief of
staff, Dr. James McCarthy, which is marked as a peer-review
document, Dr. McCarthy states that Memorial Hermann's
medical-executive committee reviewed the quality-review
committee's findings and "agreed" that
Khalil's clinical practice "represents the potential
of imminent patient harm" and, therefore, decided that
she was "not to care for patients at this hospital at
letter listed specific negative findings, including that
Khalil appeared unwilling to change her historical approach,
did not communicate well with team members, generally
expressed a rigidity unsuitable to a surgical-team
environment, had not read patient records or adequately
communicated with surgeons on occasion, and
"demonstrated lack of insight (and basic
knowledge)." The letter then reiterated the
committee's conclusion that Khalil's practice creates
"the potential of imminent patient harm and will not be
permitted if [she] attempt[s] to exercise clinical
privileges." Finally, the letter informed Khalil that
the hospital's medical-executive committee and
"[e]veryone involved" was "trying to promote
patient safety and . . . acting in good faith to that
Khalil sues and Memorial Hermann seeks
on the letter from Memorial Hermann's chief of staff as
well as other communications, Khalil sued Memorial Hermann
for defamation and other claims. Memorial Hermann answered by
asserting a general denial and pleading the affirmative
defenses of qualified common-law privilege and statutory
immunity, citing various federal and state statutes related
to peer-review protections. See 42 U.S.C.
§§ 11101-11152; Tex. Occ. Code § 160.010; Tex.
Health & Safety Code § 161.033.
Hermann also moved to dismiss several of Khalil's claims,
arguing that they infringed on its constitutional right to
free speech and its statutory right to free speech under the
TCPA. Khalil amended her petition to assert, as an
affirmative defense, that the TCPA is unconstitutional as
applied to her because its application would deprive her of
"her right to sue for reputational torts that are
expressly protected under the Texas Constitution." She
also filed a TCPA motion to dismiss Memorial Hermann's
hearing was held on the competing motions on May 6, 2016,
thereby establishing June 6 as the deadline for the trial
court to issue a ruling on the motions. See Tex.
Civ. Prac. & Rem. Code § 27.005(a). No ruling issued
by that date; therefore, both motions were denied by
operation of law. Id. § 27.008(a).
Hermann appeals the denial of its motion. Through a
cross-appeal, Khalil appeals the denial of her motion as
Citizens Participation Act
Hermann and Khalil filed competing motions to dismiss under
the Texas Citizens Participation Act. Id. §
27.001-.011. The TCPA is found in Chapter 27 of the Civil
Practice and Remedies Code, which is titled, “Actions
Involving the Exercise of Certain Constitutional
Rights.” The TCPA's purpose is to protect
“citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or
silence them.” In re Lipsky, 460 S.W.3d 579,
584 (Tex. 2015). It does so by creating “a new set of
procedural mechanisms through which a litigant may require,
by motion, a threshold testing of the merits of legal
proceedings or filings that are deemed to implicate the
expressive interests protected by the statute, with the
remedies of expedited dismissal, cost-shifting, and sanctions
for any found wanting.” Serafine v. Blunt, 466
S.W.3d 352, 369 (Tex. App.-Austin 2015, no pet.) (Pemberton,
J., concurring); see TEX. CIV. PRAC. & REM. CODE §
TCPA's dismissal provision and relevant statutory
27.003 of the TCPA contains the dismissal provision both
parties have invoked in this suit. It provides that a party
may file a motion to dismiss a legal action against it when
the legal action "is based on, relates to, or is in
response to [that] party's exercise of" one of three
rights: free speech, petition, or association. Tex. Civ.
Prac. & Rem. Code § 27.003(a). The Legislature
defined "[l]egal action" as "a lawsuit, cause
of action, petition, complaint, cross-claim, or counterclaim
or any other judicial pleading or filing that requests legal
or equitable relief." Id. § 27.001(6). The
Legislature also statutorily defined the three sets of rights
protected by TCPA summary-dismissal procedures, including a
statutorily defined right of free speech. Id. §
27.001(2)-(4); Id. § 27.001(3) ("Exercise
of the right of free speech means a communication made in
connection with a matter of public concern.") (internal
quotation marks omitted).
TCPA's shifting burdens of proof
movant seeks dismissal under the TCPA, the movant has the
initial burden to show "by a preponderance of the
evidence" that the nonmovant has asserted a "legal
action" that is "based on, relates to, or is in
response to" the movant's exercise of one of the
three rights delineated in the statute. Id. §
27.005(b). If the movant meets that burden, the burden shifts
to the nonmovant to establish "by clear and specific
evidence" a "prima facie case for each essential
element of the claim in question." Id. §
27.005(c). Dismissal may be required,
"[n]otwithstanding" the nonmovant's evidence
proffered to meet its burden, if the movant establishes
"by a preponderance of the evidence each essential
element of a valid defense to the nonmovant's
claim." Id. § 27.005(d).
trial court considers the pleadings and any supporting and
opposing affidavits to evaluate whether each party has met
its burden. Id. § 27.006(a); In re
Lipsky, 460 S.W.3d at 587.
review de novo the denial of a TCPA motion to dismiss.
Better Bus. Bureau of Metro. Houston, Inc. v. John Moore
Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.-Houston
[1st Dist.] 2013, pet. denied); Newspaper Holdings, Inc.
v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80
(Tex. App.-Houston [1st Dist.] 2013, pet. denied). This de
novo standard applies whether the motion is denied by written
order or by operation of law. See Avila v. Larrea,
394 S.W.3d 646, 652-53, 656 (Tex. App.-Dallas 2012, pet.
denied). We consider the parties' pleadings, affidavits,
and any discovery that might have been authorized by the
trial court on the issues. Tex. Civ. Prac. & Rem. Code
§ 27.006. We view the evidence in the light most
favorable to the nonmovant. Cheniere Energy, Inc. v.
Lotfi, 449 S.W.3d 210, 214 (Tex. App.-Houston [1st
Dist.] 2014, no pet.); Serafine, 466 S.W.3d at 369
we review de novo issues of statutory construction.
Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.
2011). When construing a statute, our objective is to give
effect to legislative intent, which requires us to look first
to the statute's plain language. Leland v.
Brandal, 257 S.W.3d 204, 206 (Tex. 2008). If that
language is unambiguous, we interpret the statute according
to its plain meaning. Id.; see Molinet, 356
S.W.3d at 411.
regard to Memorial Hermann's denied TCPA motion, we must
determine whether Khalil asserted a legal action that is
based on, relates to, or is in response to Memorial
Hermann's exercise of its right of free speech as defined
in the TCPA, and, if so, whether she has established a prima
facie case for each essential element of each of her claims
that are the subject of the dismissal motion. We must also
consider whether Memorial Hermann, nonetheless, has
established each essential element of a valid defense to
TCPA motion to dismiss Memorial Hermann's motion requests
the same analysis. One step would be to determine whether
Memorial Hermann has met its burden to establish a prima
facie case for dismissal of Khalil's claims. See
Tex. Civ. Prac. & Rem. Code § 27.005(c). Because
evaluating Memorial Hermann's dismissal motion would be a
necessary step to disposing of Khalil's motion, we begin
with Memorial Hermann's motion.
Hermann's Motion to Dismiss
begin with the threshold question of whether Memorial Hermann
met its burden under the TCPA to establish by a preponderance
of the evidence that Khalil brought a legal action that
"is based on, relates to, or is in response to" its
exercise of the right of free speech, as defined in the TCPA.
Whether Memorial Hermann satisfied its
TCPA defines the "[e]xercise of the right of free
speech" as a "communication made in connection with
a matter of public concern." Id. §
27.001(3). A "[c]ommunication includes the making or
submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or
electronic." Id. § 27.001(1). It includes
both private and public communications. Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). A
"[m]atter of public concern" is defined to include,
among other things, an issue related to "health or
safety." Tex. Civ. Prac. & Rem. Code §
letter to Khalil from Memorial Hermann's chief of staff
criticized her past job performance, concluded that her
"clinical practice represents the potential of imminent
patient harm, " and directed that she be prohibited from
engaging in clinical ...