Memorial Hermann Health System v. Samia Khalil, M.D.
01-16-00512-CV
Tex. App.Aug 8, 2017Background
- Dr. Samia Khalil, a pediatric anesthesiologist of 40 years at Memorial Hermann, was placed on a UT Health corrective action plan in 2014 and was restricted from clinical care while assessments and a chart review proceeded. The corrective action was initiated by UT Health but Memorial Hermann was notified.
- A limited 13‑month credential renewal was offered; Khalil’s outside assessment was not completed before the recredentialing deadline, and Memorial Hermann declared her credentials expired, ending her ability to practice there.
- Khalil sued Memorial Hermann for defamation, fraud, tortious interference (with her UT Health contract), conspiracy, "assisting and encouraging," and intentional infliction of emotional distress; she also asserted an age‑discrimination claim.
- Memorial Hermann moved to dismiss several claims under the Texas Citizens Participation Act (TCPA); Khalil filed a TCPA motion seeking dismissal of Memorial Hermann’s TCPA motion and argued the TCPA is unconstitutional as applied to reputational torts.
- The trial court failed to rule within the statutory deadline, so both TCPA motions were denied by operation of law; the court of appeals reviewed de novo and considered the parties’ pleadings and submitted evidence (peer‑review letters, emails, and UT Health documents).
Issues
| Issue | Plaintiff's Argument (Khalil) | Defendant's Argument (Memorial Hermann) | Held |
|---|---|---|---|
| Whether the TCPA applies (i.e., Khalil’s suit is in response to defendant's free‑speech on a matter of public concern) | Khalil argued her claims are ordinary reputational/employment torts not protected by TCPA or that some communications were non‑public/privileged UT Health communications | Memorial Hermann argued its communications about Khalil's competence concerned health/safety (public concern) and thus the TCPA applies | Held: TCPA applies — communications about physician competence implicate health/safety and are protected speech under the TCPA (court relied on Lippincott and Coleman) |
| Whether Khalil established a prima facie defamation claim given peer‑review privilege and burden to show malice | Khalil contended the communications were defamatory and she was a private figure so negligence suffices; she pointed to emails and timing to infer malice | Memorial Hermann asserted statements were peer‑review privileged and, as a health‑care entity engaging in peer review, statutory and common‑law privileges apply, so Khalil must show actual malice | Held: Khalil failed to show clear and specific evidence of malice for peer‑review communications; defamation claim dismissed under TCPA |
| Sufficiency of evidence for other torts (fraud, tortious interference, IIED, assisting/encouraging, conspiracy) | Khalil alleged intentional delay/misrepresentations causing credential loss, resulting damages, extreme conduct and a coordinated plan with UT Health | Memorial Hermann argued presumption of good faith in peer review, lack of evidence of proximate economic damages (UT Health contract still in force), failure to show extreme/outrageous conduct, and that derivative claims fail without viable underlying torts | Held: All these challenged claims fail the TCPA prima facie test and must be dismissed (fraud, tortious interference for lack of damages, IIED for not extreme/outrageous, assisting/encouraging and conspiracy dismissed) |
| Constitutionality of the TCPA (facial and as‑applied; Open Courts and free‑speech concerns) | Khalil argued TCPA is a prior restraint and its expedited procedures, discovery limits, and mandatory fee‑shifting unconstitutionally limit access to courts for reputational torts | Memorial Hermann defended TCPA as balancing speech protection and access to courts, with discovery available on good cause and fee awards discretionary and limited by statute | Held: TCPA is not facially unconstitutional; Khalil waived as‑applied argument and court rejected open‑courts and prior‑restraint claims |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explains TCPA procedure, burdens, and evidentiary standard for prima facie proof)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (internal communications about a health‑care provider’s competence qualify as matters of public concern under the TCPA)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (TCPA requires only that defendant’s statements be "in connection with" matters of public concern listed by statute)
- Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013) (distinguishes fault standards for defamation claims based on plaintiff status and context; addresses qualified privilege and malice)
- St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997) (peer‑review activities analogized to employer performance assessment and entitled to qualified privilege)