Pisharodi v. Columbia Valley Healthcare Sys., L.P.

• Decision Date: 07 May 2020
• Docket Number: NUMBER 13-18-00364-CV
• Citation: 622 S.W.3d 74
• Parties: Madhavan PISHARODI, Appellant, v. COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. d/b/a Valley Regional Medical Center, Appellee.
• Court: Texas Court of Appeals

622 S.W.3d 74

Madhavan PISHARODI, Appellant,

v.COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P. d/b/a Valley Regional Medical Center, Appellee.

NUMBER 13-18-00364-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 7, 2020

Rehearing Denied August 10, 2020

Motion for En Banc Reconsideration Denied October 5, 2020

Ricardo Guerra, Guerra Days Law Group, PLLC, Spring, Richard E. Zayas, Zayas & Hernandez, P.C., Gilberto Hinojosa, Law Office of Gilberto Hinojosa & Associates, P.C., Brownsville, Keith C. Livesay, Livesay Law Office, McAllen, for Appellant.

James "Jim" R. Wetwiska, Akin Gump Strauss Hauer & Feld, LLP, Houston, for Appellee.

Before Justices Benavides, Perkes, and Tijerina

Opinion by Justice Perkes Appellant, Madhavan Pisharodi, M.D. appeals the trial court's order of dismissal pursuant to the Texas Citizens Participation Act (TCPA) in favor of appellee Columbia Valley Healthcare System, L.P. d/b/a Valley Regional Medical Center (Valley Regional). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003 –.008(b).¹ By three issues, Pisharodi contends that the trial court erred in (1) granting the motion to dismiss, (2) awarding attorney's fees in contravention of his constitutional right to have a jury assess the reasonableness of fees, and (3) imposing sanctions absent evidence of his income. We affirm in part and reverse and remand in part.

I. BACKGROUND

On February 14, 2016, at approximately 1:30 am., a patient arrived intoxicated to the emergency room at Valley Regional Medical Center, where Pisharodi was working as an on-call neurosurgeon. Pisharodi was called to examine the patient. Upon Pisharodi's arrival to the hospital, Valley Regional employees accused him of being intoxicated, and the chief of surgery provided Pisharodi with two options; Pisharodi could take a blood test or delay the start of surgery. Pisharodi refused the blood test and left the hospital, intending to return in three hours to perform the surgery. In the interim, the patient was transferred to a nearby facility for surgery without Pisharodi's knowledge or approval. Surgery was performed by another on-call physician, Dr. Alejandro Betancourt, an individual Pisharodi claims has "been engaged in protracted litigation for tortious conduct toward [him] over the course of many years."

On March 18, 2016, during a deposition in an unrelated case involving Pisharodi and Betancourt, Pisharodi was questioned regarding the February 14th incident. Betancourt's attorneys inquired whether Pisharodi "was under a medical board review, or had a complaint pending for review over being reprimanded."

Five months later, on August 16, 2016, Valley Regional initiated a peer review to determine (1) whether Pisharodi was under the influence of alcohol while working on-call and whether his condition delayed care to the patient, and (2) what, if any, action should be taken. During the peer review hearing, Pisharodi claimed he was "informed by a member of the panel that the family of the patient involved in the alleged incident had been informed he was under the influence of alcohol." Pisharodi was notified of the results of the peer review by Valley Regional on December 1, 2016. The hospital's Medical Executive Committee (MEC) declined to recommend "any action or formal investigation of the matter."²

On March 17, 2017, Pisharodi filed suit against Valley Regional, alleging breach of contract and malicious civil prosecution. Pisharodi argues that Valley Regional breached its contract with him "by violating the confidentiality clause of the bylaws," citing two provisions in the hospital's medical staff bylaws in his petition. Pisharodi, in his claim of malicious prosecution, asserts that "[a] civil proceeding was instituted against Pisharodi," and it was "instituted or continued by or at the insistence of [Valley Regional]," which "acted with malice." As evidence of special damages, Pisharodi claimed the cancelled surgery "cost [him] approximately $5,000.00."

Following the submission of an appearance and general denial, Valley Regional filed a motion to dismiss pursuant to the TCPA on June 9, 2017. The trial court held a hearing on the motion on September 5, 2017, and the court took the matter under advisement before granting Valley Regional's motion on September 11, 2017.

On October 25, 2017, Valley Regional filed a "Motion for Attorney's Fees, Costs, Expenses, And Sanctions Pursuant to The Texas Citizens Participation Act." Valley Regional sought $91,789 in attorney's fees, costs, and expenses incurred, as well as an additional $91,789 in sanctions. Prior to a hearing on Valley Regional's motion, Pisharodi submitted a jury demand. Pisharodi raised the issue once more at the hearing, asserting his constitutional-based entitlement to a jury trial "on the issue of the reasonableness of these [attorney] rates." The trial court denied Pisharodi's request for a jury trial.

Valley Regional was ultimately awarded $55,000 in reasonable and necessary attorney's fees and expenses, as well as $20,000 in sanctions.

This appeal followed.

II. TCPA

"The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits." In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) (citing TEX. CIV. PRAC. & REM. CODE Ann. § 27.002 ). Under the TCPA, a defendant may move to dismiss a suit "based on, relate[d] to, or ... in response to a party's exercise of the right of free speech, right to petition, or right of association." Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE Ann. § 27.003(a) ); Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 131 (Tex. 2019). The defendant, however, must show by a preponderance of the evidence that the conduct that forms the basis of the claim against it is protected by the TCPA—that is to say, that the suit is based on, relates to, or is in response to its exercise of its right to free speech, association, or petition. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(b) ); S & S Emergency Training Sols., Inc. v. Elliott , 564 S.W.3d 843, 847 (Tex. 2018). Whether a legal action is based on, related to, or in response to the exercise of a protected right is determined based on the claims made in the non-movant's petition, pleadings, and affidavits. TEX. CIV. PRAC. & REM. CODE Ann. § 27.006 ; Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017) ; Erdner v. Highland Park Emergency Ctr., LLC , 580 S.W.3d 269, 275 (Tex. App.—Dallas 2019, pet. denied).

If the defendant meets this burden, then the burden shifts to the plaintiff to establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(c) ; Lona Hills Ranch , 591 S.W.3d at 127 ; In re Lipsky , 460 S.W.3d at 587. "Clear" means "unambiguous, sure or free from doubt," and "specific" means "explicit or relating to a particular named thing." In re Lipsky , 460 S.W.3d at 590. A "prima facie case" is "the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. The "clear and specific evidence" requirement requires more than mere notice pleading. Id. at 590–91. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Id. Dismissal of the case is required if the plaintiff fails to meet its burden or if the defendant "establishes by a preponderance of the evidence each essential element of a valid defense to the [plaintiff's] claim." TEX. CIV. PRAC. & REM. CODE Ann. § 27.005(d) ; Lona Hills Ranch , 591 S.W.3d at 127.

We review de novo a trial court's ruling on a TCPA motion to dismiss. Dall. Morning News, Inc. v. Hall , 579 S.W.3d 370, 377 (Tex. 2019). In conducting our review, we consider the pleadings and evidence in a light favorable to the nonmovant. TV Azteca, S.A.B. de C.V. v. Trevino Ruiz , No. 13-18-00287-CV, 611 S.W.3d 24, 27–28 (Tex. App.—Corpus Christi–Edinburg, no pet.) ; Dyer v. Medoc Health Servs., LLC , 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied).

A. TCPA Applicability

Pisharodi brings a breach of contract claim and malicious prosecution claim against Valley Regional. Regarding the breach of contract claim, Pisharodi asserts that Valley Regional breached the confidentiality terms of its medical staff bylaws when it relayed allegations of his intoxication to local attorneys and the involved patient's family. With respect to his malicious prosecution claim, Pisharodi argues Valley Regional acted with malice and without probable cause when it instituted peer review actions based on the intoxication allegations. Valley Regional asserts that Pisharodi's claims are based on, related to, or in response a "matter of public concern," and such communications—including those stemming from the peer review process—are protected under the TCPA.

The TCPA defines the "[e]xercise of the right of free speech" as a "communication made in connection with a matter of public concern." TEX. CIV. PRAC. & REM. CODE Ann. § 27.001(3). A "[c]ommunication includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1). It includes both private and public communications. Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). A "[m]atter of public concern" is defined to include, among other things, an issue related to "health or safety." Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962 (amended 2019) (former TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(A) ). The TCPA does not require that alleged communications explicitly "mention" health or safety...