Freedom from SLAPP suits: The right to speak up for patients

The courts need to continue to protect physicians who speak out in order to advocate for patients and to ensure that patient care isn't jeopardized.

Posted Aug. 21, 2006.

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Imagine a world where physicians were afraid to speak up about issues that could affect a community's health. A world where executives at big companies with lots of money and high-priced lawyers stepped in with a lawsuit when a physician said something that they didn't like, even though the physician spoke out in order to protect patients.

A California infectious disease specialist recently got a glimpse of how that world would look.

It wasn't pretty.

Fortunately, though, a California appellate court stepped in to ensure that doctors have the right to speak up on issues that could negatively impact their patients. It's exactly the freedom of speech that physicians need in their unique role in society where they act as healers, advocates, information providers and citizens who speak out on health care issues.

Future courts need to follow that lead if faced with similarly unfounded lawsuits against physicians speaking out publicly to protect patient care.

The California court in June ruled that the state's anti-SLAPP statute -- formally known as the Strategic Lawsuits Against Public Participation law -- protected Michael Fitzgibbons, MD, who practices in Santa Ana. The law allows a person who has been sued to ask the court to dismiss the claims unless the person or company that filed the lawsuit can prove there is a probability of proving the claims.

Dr. Fitzgibbons asked the court for relief after he found himself on the receiving end of a lawsuit filed by Integrated Healthcare Holdings Inc., that accused him of defamation, among other things. The allegations arose after the doctor sent an e-mail discussing the financial instability of the company that took over his hospital and three other Orange County hospitals after it defaulted on tens of millions of dollars in loans.

The appellate ruling was a good one, reversing a trial court opinion that said that the law designed to protect a person's free speech in connection with a public issue or an issue of public interest didn't apply in Dr. Fitzgibbon's case. In fact, the California law -- one of about 30 anti-SLAPP state laws across the country -- was enacted exactly to protect Dr. Fitzgibbons and other doctors like him.

Physicians must be free to advocate on behalf of their patients and be free to speak up and challenge decisions that jeopardize patients' health, in part because trust is the cornerstone of the physician-patient relationship. Patients trust that their physicians are going to do what is best for their well-being. That trust includes a physician speaking out to ensure that entities such as hospitals are solvent and there for the communities they serve.

If physicians are afraid of being sued, it would be difficult for them to speak out about concerns of a hospital system closing or other matters that could affect patients' health.

The American Medical Association believes that physicians' ability to speak out without the fear that their words could subject them to the burdens of an unfounded lawsuit is so important that the AMA/State Medical Societies Litigation Center joined the California Medical Assn. in filing a friend-of-the-court brief on behalf of Dr. Fitzgibbons.

Organized medicine noted that entities may take a physician to court for his or her speech simply because it may be a "more cost-effective mechanism for eliminating a physician's criticism than trying to respond appropriately on the merits to the criticisms that have been expressed."

That's not right.

It is critical to the public health and welfare that physicians continue to advocate for health care and to advocate against forces that could deprive the community of access to health care. That includes speaking out on a matter that may appear to be of a pure business nature, but in reality affects a community's access to care.

The court upholding Dr. Fitzgibbons' right to speak out on this type of issue sends a signal to physicians that they live in a world where their right to advocate and participate in issues that impact patient access to care are not illusionary. A world where doctors can speak their minds and help ensure patients have access to the care they need.

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