Healthcare, Reform & the Citizen Participation Act (H.R. 4364)
Strategic Lawsuits Against Public Participation – SLAPPs – are meritless lawsuits against those who urge government action or speak out on an issue of public interest. SLAPPs intimidate and harass, and often silence those who would speak out.
Medicine manufacturers, and healthcare providers have been known to sue patients for sharing negative information about safety, efficacy and quality. Many in the health care industry seem downright opposed to sharing information with the public. In fact, more than 2,000 U.S. doctors have joined a service that supplies them with form agreements that forbid their patients from writing bad reviews of their treatment online. These gags reflect a trend in a health care industry that is already plagued by inefficiency and opacity.
Further, much of the current debate about healthcare has focused on poor quality, rising prices, fraud and inefficiency. Patients and doctors who might otherwise play the role of whistle blower and draw attention to these issues face the real threat of a lawsuit for their efforts.
Those who shed light on industry practices and standards should be applauded, not punished by being dragged through the courts to defend a groundless lawsuit. The proposed Citizen Participation Act would protect against SLAPPs in all states and at the federal level, by allowing a defendant who has been sued on the basis of protected speech to invoke immunity for petitioning activity; to quickly dismiss a SLAPP; and to recover attorney’s fees and costs.
SLAPPs Against Doctors
The safety and standards of the medical profession are set by peer review boards. Writing for the Medical Malpractice Law and Strategy Journal, David Axelrad and Jeremy Rosen encapsulated the problem: “In addition to their natural reticence, those who sit on or testify at a review proceeding have another reason to want to avoid it: The threat of lawsuits brought by the medical practitioner facing discipline. The scope of the problem is obvious: without willful and honest participants, the peer review system that keeps patients safe is compromised.”
The Citizen Participation Act’s protections would encourage medical professionals to hold themselves and their peers to high standards, without the threat of meritless lawsuits. Examples of such lawsuits include:
4AM v. Olshansky
• Dr. Thomas Perls of Boston University and Professor S. Jay Olshansky of the University of Illinois at Chicago have long regarded anti-aging medicine with skepticism, and believe that some statements and claims about anti-aging products and techniques may be unfounded or misleading. The two doctors have been outspoken about these beliefs. In 2004, their outspokenness landed them in court. The American Academy for Anti-Aging Medicine (A4M) filed a lawsuit against both professors in an Illinois. The suit alleged that the two professors had engaged in "defamatory conduct” and interfered with A4M's business and economic advantage. Examples of interfering conduct included Olshansky’s granting A4M a "silver fleece" award -- a designation meant to shame medical professionals who claim they have invented ways to reverse aging. The suit also alleged that at a 2004 A4M conference, Olshansky left a bottle of vegetable oil labeled "snake oil" for the plaintiffs. A4M alleged $120 million in damages, and Olshansky responded by filing a countersuit. In 2006, A4M agreed to drop its suit if Olshansky dropped his, and the case was settled. But, in September 2009, A4M was back in court, this time dragging the popular website Wikipedia into the fray. A4M alleged that some of the comments posted on the website were defamatory, and so sought the identities of the anonymous posters of those comments. See more on the case here and here.
Kobrin v.Gastfriend, 443 Mass. 327 (2005)
• In the mid-1990s in Massachusetts, the Board of Registration in Medicine was conducting an investigation into psychiatrist Kennard Kobrin. As part of the investigation, the board asked another psychiatrist, David Gastfriend, to review and evaluate medical records and reports relating to Kobrin’s prescription practices, and to execute an affidavit about his findings. Gastfriend did so, stating in the affidavit that in his professional opinion, Kobrin deviated from the proper psychiatric standard of care, was "engaged pervasively in illegitimate prescribing and . . . widespread misconduct," and that Kobrin’s "continued practice of medicine . . . represents a serious and immediate threat to his patients and to the public health, safety and welfare." After proceeding with disciplinary hearings, the board dismissed the charges against Kobrin. In 2002, Kobrin filed suit against Gastfriend for "expert witness malpractice or negligence," defamation, malicious prosecution, and interference with contractual relations. Gastfriend filed a motion to dismiss under Massachusetts’ anti-SLAPP law, which protects statements made to the government. The trial court agreed that Gastfriend’s communications with the board, as part of a quasi-criminal proceeding, were protected, and dismissed the lawsuit. On appeal, however, the Massachusetts Supreme Court removed the case from the appeals court on its own initiative and reversed the trial court. The court held that, although his affidavit was submitted to a governmental body, Gastfriend had made the statements in his capacity as an expert hired by the Board, not in order to seek redress from the government as a citizen. The court therefore held his statements were not protected, denied the anti-SLAPP motion, and remanded to the lower court for further proceedings. See Rosen and Axelrad's summary and comparison with a California case that was decided differently at the medical malpractice law journal.
Alta-Dena v. American Academy of Pediatrics
• In 1986, the raw milk distributor Alta-Deena Certified Dairy sued the American Academy of Pediatrics and its Fellow, Dr. John Bolton, for $110 million after the Academy and Dr. Bolton issued statements that raw milk can be contaminated by dangerous bacteria and is a threat to public health. The California judge dismissed the lawsuit.
SLAPPs Against Patients
The Citizen Participation Act is designed to protect and encourage patient review about medicals services, billing practices and quality of care.
Biegel v. Norberg, No. CGC-08-472522 (San Francisco Sup. Ct., Filed Feb. 25, 2008)
• In 2008, San Francisco resident Christopher Norberg was sued for comments he wrote about his experience with a local chiropractor, Steven Biegel. Biegel treated Norberg twice for injuries sustained in a car accident, and attempted to bill Norberg’s auto insurance company, which refused to pay the bill. Norberg then learned that Biegel's bill to the auto insurer was $550 instead of $125, which was the amount quoted for two visits. Biegel explained that his office bills insurers at a higher rate than patients who pay for service directly because of the higher office costs in dealing with the paperwork and delays in receiving payment. Norberg then posted his Yelp review, which said in part, "I didn't feel comfortable with their tactics;” Biegel "couldn't give me a straight answer as to why the jump in price...He called me back to cover his ass...(and says) he runs a business and would stick it to insurance companies." In January 2008, Biegel’s attorney sent a letter demanding that Norberg remove the review, and two days later Norberg did. But the following month, Biegel sued anyway, alleging a loss of reputation and business as a result of the review and seeking punitive damages. After a few months, the two parties settled the case. See the complaint for Biegel v. Norberg, No. CGC-08-472522 (San Francisco Sup. Ct., Filed Feb. 25, 2008) courtesy of CMPL, along with their commentary.
Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. 2 Dist. 2008)
• In 2006 in California Genevieve Owyang posted an online review of her dentist, Richard Kim, writing in part that did not like HMO patients (which she was) and that it took several weeks to schedule appointments. Subsequently, Kelly Smith, another patient of Kim’s, filed a complaint against him with the board of dentistry. Kim then sued both patients for defamation, fraud, intentional interference with prospective business advantage, and civil conspiracy. Both patients filed anti-SLAPP motions. The trial court granted the anti-SLAPP motions in their entirety and awarded attorneys fees and costs to all defendants. The court found the statements attributed to Owyang were non-actionable opinion and that Smith’s statements to the Board were absolutely privileged pursuant to California’s “litigation privilege”(Civil Code § 47(b)). Kim appealed the dismissal. On appeal, he argued that the litigation privilege did not apply to conduct, and that there was no privilege to a cause of action for defamation. The court, noting that he cited absolutely no authority for those assertions, affirmed the anti-SLAPP dismissal and remanded for an award of costs incurred by the defendants on appeal.
St. George Corrective Vision v. Kantis, No. 2005-L-009942 (Dismissed Jul. 13, 2006)
• In 2005, Dr. Nicholas Caro, a LASIK eye surgeon, filed a lawsuit seeking $2 million in damages from Dean Kantis, a former LASIK patient who operated a website drawing attention to a number of lawsuits that had been filed against Dr. Caro, and potential problems from LASIK generally. Dr. Caro alleged in his lawsuit that Kantis "engaged in an ongoing process of telephoning, mailing, facsimile transmitting, e-mails and related written communications, to various governmental bodies and/or individuals,” including the Better Business Bureau of Chicago and the Department of Registration and Education. At the time of the lawsuit, Illinois’ anti-SLAPP law had not taken an effect, which may have provided immunity for some of Kantis’ statements, and allowed him to seek attorney’s fees and costs. Without the protection of the anti-SLAPP law, the lawsuit was dismissed in July 2006, but Kantis paid his own costs for the nine months he spent defending against it. See CMPL's summary of events and available documents as well.