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Doctors Fighting and the Texas Anti-Slapp Law

Texas Anti-Slapp

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.


In Price v. Buschemeyer, 12-17-00180-CV, (Tex. App – Tyler, March 29, 2018)(mem. op.), the court had to decide if and how the Texas Anti-Slapp or TCPA statute applied to a dispute between doctors and between a doctor and a hospital.


A doctor sued another doctor and hospitals claiming several causes of action. The defendants filed motions to dismiss under the Texas Anti-Slapp statute. The trial court refused to dismiss ruling that the Texas Anti-Slapp statute did not apply and even if it did, the plaintiff had met his burden of showing a prima facie case. The defendants filed an interlocutory appeal as is authorized by the Texas Anti-Slapp statute.

Court of Appeals

One doctor complained of another doctor and a hospital about denying him access to be “on call.” He also complained that he was not notified when his patients presented at the emergency room.

“The central basis for all of these claims is Buschemeyer’s removal from the call group list and schedule. Consequently, Buschemeyer’s “legal action, ” which includes all of the claims alleged in his petition, is based on, relates to, or is in response to “communications” made by Appellants. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6) (defining “legal action” in pertinent part as lawsuits, petitions, complaints, and causes of action requesting legal or equitable relief).”

Having ruled that the Texas Anti-Slapp statute applied, the court then went on to the second prong in a TCPA claim, e.g. did the plaintiff prove by, clear and specific evidence, a prima facie case for each of his causes of action. The court discussed each cause of action and their elements.

Tortious Interference with an Existing Contract

The elements of tortious interference with an existing contract are: (1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff’s injury, and (4) caused actual damages or loss.
The court held that the plaintiff had met his burden to show a prima facia case for these elements.

Tortious Interference with Prospective Business Relations

In a claim for tortious interference with prospective business relations, a plaintiff must establish that (1) there was a reasonable probability that the plaintiff would have entered into a business relationship with a third party, (2) the defendant either acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct, (3) the defendant’s conduct was independently tortious or unlawful, (4) the interference proximately caused the plaintiff injury, and (5) the plaintiff suffered actual damage or loss as a result.

Again, the court held that plaintiff had met his burden on this cause of action.

The court then stated that the plaintiff had to prove that the defendant’s conduct was independently tortious or wrongful.

“By independently tortious we do not mean that the plaintiff must be able to prove an independent tort. Rather, we mean only that the plaintiff must prove that the defendant’s conduct would be actionable under a recognized tort. Thus, for example, a plaintiff may recover for tortious interference from a defendant who makes fraudulent statements about the plaintiff to a third person without proving that the third person was actually defrauded.”

The court held that the plaintiff had satisfied his burden in the interference claims against the defendant doctor but not against the defendant hospital.

Intentional Infliction of Emotional Distress

The court said that it is a gap-filler tort that has no application when the conduct at issue invades some other legally protected interest.
To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.

The court held that the plaintiff did not meet his burden of showing intentional infliction of emotional distress.

Due Process Claims

In his response to the motion to dismiss, Buschemeyer argued that this is a constitutional due process claim, alleging that the hospital defendants publicized the communications leading to his discharge from the call group, that he was denied a meaningful hearing to clear his name, and that he should be compensated for the stigma resulting from his removal from the call group.

Exhibit 3 is Memorial’s bylaws, rules, and regulations, and Article 7 relates to investigations for physician misconduct. Exhibit 4 is Woodland Heights’ bylaws, rules, and regulations, and Articles 8 and 9 relate to investigations for physician misconduct and disciplinary procedures. Dr. Dunn explained generally in his affidavit that “operating room schedules that are discriminatory would be in violation of the bylaws.” However, neither he nor Buschemeyer provide any further detail or specify in their affidavits which provisions were violated or explain how the violations harmed him. Buschemeyer also does not show that Memorial or Woodland Heights are state actors, as is required for such a constitutional due process claim.

 Finally, Buschemeyer failed to support his due process claims in his appellate brief. We hold that Buschemeyer failed to provide enough detail to show a factual basis for these claims. Accordingly, the trial court erred when it failed to dismiss Buschemeyer’s due process claims against Memorial and Woodland Heights.

Breach of Contract

The elements of a breach of contract claim are (1) the existence of a valid contract, (2) performance or tendered performance, (3) breach of the contract, and (4) damage as a result of the breach.
Plaintiff presented a prima facie case of breach of contract.

Damages on all Claims

The court said:

The goal in measuring damages for a breach of contract claim is to provide just compensation for any loss or damage actually sustained as a result of the breach…The normal measure of damages in a breach of contract case is the expectancy or benefit-of-the-bargain measure...The purpose of this measure of damages is to restore the injured party to the economic position it would have occupied had the contract been performed... The basic measure of actual damages for tortious interference with contract is the same as the measure of damages for breach of the contract interfered with, to put the plaintiff in the same economic position he would have been in had the contract interfered with been actually performed.

The Texas Supreme Court has not required that the plaintiff establish a specific amount of damages in the TCPA analysis. Under the TCPA, Buschemeyer only had to adduce evidence supporting a rational inference as to the existence of damages, not their amount or constituent parts.

As we have stated, (plaintiff) need show only how Appellants caused his damages, and that he in fact suffered damages, not the specific amounts of losses with exactitude.

The court went on to say that at trial, the plaintiff may have to explain his damages in more specificity, but he satisfied his burden under the Texas Anti-Slapp statute.

Conclusion and Disposition

We have sustained Appellants’ first issue and portions of their second issue. Accordingly, we reverse the portion of the trial court’s order finding that Buschemeyer’s claims are not governed by the TCPA. We also reverse the portion of the trial court’s order concluding that Buschemeyer established a prima facie case by clear and specific evidence for each essential element of his due process and tortious interference with existing patients’ claims against Woodland Heights and Memorial, along with his intentional infliction of emotional distress claim against Price, and we render judgment dismissing those claims. Because we have found that Buschemeyer failed to meet his TCPA burden on all claims against Memorial, we render judgment dismissing Memorial from this lawsuit. The remaining portion of the trial court’s order finding that Buschemeyer met his TCPA burden to establish his other claims against Price and Woodland Heights is affirmed. We remand the case for a determination of attorney’s fees to be awarded to Appellants, and for further proceedings consistent with this opinion.


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