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Anti-Slapp’s “Public Interest” Requirement in Patient Care Context: It’s Not Just What You Say

On September 24, 2020, the California Court of Appeal shed additional light on meeting the public interest requirements in anti-SLAPP motions in its opinion of Murray v. Tran (Cal. Ct. App., Sept. 24, 2020, No. D076104).

The decision instructs hospitals, medical staffs, and peer reviewers as to what types of communications will receive anti-SLAPP protections. Many communications related to physician competence or patient safety are protected under anti-SLAPP. But to ensure robust protection, Murray cautions that defendants need to show their communications contribute to or further the public debate or the public interest regarding patient safety. In this case, the court held that only one of several alleged defamatory statements was anti-SLAPP protected, because the unprotected statements did not further a public conversation or discussion.

Case Background

In Murray, a dentist (Plaintiff) sued his former dental practice partner (Defendant), alleging that Defendant made false and defamatory statements about Plaintiff’s competence and quality of work to various individuals, including Plaintiff’s employer. Defendant filed an anti-SLAPP motion, arguing that his warnings about Plaintiff’s competence were free speech “in connection with a public issue or an issue of public interest,” under the anti-SLAPP statute at California Code of Civil Procedure §425.16(e)(4). The trial court granted Defendant’s anti-SLAPP motion, and Plaintiff appealed.

Whether the Content of Speech Relates to an Issue of Public Interest

The Court of Appeal applied a two-part test found in the Supreme Court’s decision FilmOn.com Inc. v. DoubleVerify Inc.

Under the first part of the test, the court considered the content of Defendant’s statements to determine whether those statements related to a public issue or an issue of public interest. The court agreed with Defendant that the quality of Plaintiff’s dental work was a matter of public interest for both current and future dental patients.

Whether the Context of Speech Contributes to Public Discourse

Under step two of the analysis, the court considered the context of Defendant’s statements. Specifically, the court evaluated whether the alleged defamatory statements furthered any broader public conversation about competent dentistry. The court noted that because the context—including the speech’s purpose and audience—was different for each instance of alleged defamation, each communication would need to be examined separately.

With regard to Defendant’s emails to Plaintiff’s business associates, the court held that these statements did not further any public discussion because the emails were sent to a limited group of people who would not be expected to communicate with patients or the public at large. In contrast, the Court of Appeal held that Defendant’s conversations with Plaintiff’s current employer were in furtherance of public discourse. These statements not only related to an issue of public interest (the competency of dentists), they also “promoted the public conversation on that issue because they were made to a person who had direct connection to and authority over the patient population with whom [Plaintiff] was working at the time.”

Thus, the court focused not just on the nature of statements, but also the circumstances under which such statements were made to determine if anti-SLAPP applies. It was not enough that the statements were in the public interest; Defendant had to also show that the disclosure of those statements furthered that public interest.

Lessons for Peer Reviewers

In the peer review context, we believe most statements about a physician’s competence would be “made to a person who had direct connection to and authority over the patient population with whom [the physician is] working at the time”—namely, peer review committees acting to protect patient safety under the direction of the Medical Executive Committee and according to statutory law and bylaws. Thus under Murray, statements relevant to the competency and fitness of a provider made to peer review bodies should receive anti-SLAPP protection. But this case is a reminder that courts will examine the unique circumstances of each case before determining whether anti-SLAPP protections apply.

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