Batra v. Covenant Health Sys.

562 S.W.3d 696

Subhash C. BATRA, M.D., Appellant

v.COVENANT HEALTH SYSTEM d/b/a Covenant Medical Center/Covenant Medical Center-Lakeside, Appellee

No. 07-18-00012-CV

Court of Appeals of Texas, Amarillo.

October 9, 2018

Rehearing Denied November 5, 2018

Thomas C. Riney, Amarillo, Sabrina R. Karels, Kerri L. Stampes, Dallas, for Appellee.

Lee Bukstein, Austin, for Appellant.

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

OPINION

Patrick A. Pirtle, Justice

Appellant, Subhash C. Batra, M.D., filed this interlocutory appeal from the trial court’s supplemental order granting the motion to dismiss with prejudice filed by Appellee, Covenant Health System d/b/a Covenant Medical Center/Covenant Medical Center-Lakeside (Covenant), pursuant to the provisions of the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001 -.009 (West 2015).¹ By his original and reply briefs, Dr. Batra presents two issues challenging (1) the trial court’s failure to issue findings of fact and conclusions of law and (2) the trial court’s order granting Covenant’s motion to dismiss. More specifically, by his second issue, Dr. Batra questions whether (1) his claims or causes of action regard a matter of "public concern" that relates to the exercise of the right of free speech; (2) he presented clear and specific evidence of a prima facie case for each essential element of his various claims; and (3) Covenant established an affirmative defense to any or all of those claims by a preponderance of the evidence. In his Summary of the Argument , Dr. Batra also challenges the trial court’s award of attorney’s fees to Covenant and the imposition of sanctions against him which, although not presented as separate issues,² will be addressed in this opinion. Upon consideration of each issue, we affirm.

BACKGROUND

Dr. Batra is a gastroenterologist who had credentials to practice at Covenant and its facilities from 1995 until 2016. In 2013 and 2014, certain Covenant staff members made allegations against him related to patient care. He was temporarily suspended while an investigation was conducted. Ultimately, he was exonerated of the allegations and his medical staff privileges were restored.³

As is customary in the medical profession, physicians are required to periodically apply for the renewal of medical staff privileges at hospitals where they perform their medical services. In August 2015, Dr. Batra applied for renewal of his privileges at Covenant. Covenant’s Credentialing Committee recommended to the Medical Executive Committee, however, that the renewal of his privileges be denied. Dr. Batra claimed the decision was made without notice and an opportunity to be heard, in violation of the Medical Staff Bylaws.⁴ Covenant’s Chief of Staff then re-initiated the original allegations and added two new allegations concerning patient safety. This time the Medical Executive Committee provided Dr. Batra sufficient notice and an opportunity to be heard.

In September 2015, based in part on the newly-included allegations, the Medical Executive Committee again recommended that Dr. Batra’s medical staff privileges be denied. Pending a review hearing before the Fair Hearing Panel (another procedural safeguard provided by the Medical Staff Bylaws), Dr. Batra was granted temporary privileges in accordance with standard procedures. Based on the Medical Executive Committee’s recommendation, a Fair Hearing Panel was formed for the purpose of reviewing some of Dr. Batra’s patient cases. At the hearing, the Medical Executive Committee was represented by its attorney, Ben Davidson. Dr. Batra also had legal representation and both sides presented witnesses.

The two cases the Medical Executive Committee used to justify denial of Dr. Batra’s privileges involved the quality of patient care and a breach of patient confidentiality. The first allegation was that Dr. Batra failed to timely allow intervention by an anesthesiologist in order to intubate a patient with a cardiac condition when there was a critical change in her vital signs during a procedure. The second allegation, testified to by several witnesses assisting during a particular procedure, was that during that procedure Dr. Batra engaged in a conversation with his son and daughter-in-law via a cell phone calling feature known as FaceTime. Dr. Batra’s son had attended medical school for a brief period before pursuing a legal career and expressed an interest in watching the procedure. The electronic transmission of the procedure was done without patient consent, although no patient data was transmitted over FaceTime. Dr. Batra expressed to staff members who assisted him that day that they keep the incident to themselves. Someone, however, reported the incident to other medical staff.

The members of the Fair Hearing Panel issued a report on March 9, 2016, that did not contain any findings that Dr. Batra violated the standard of medical practice or professional conduct. It did, however, include a specific finding that Dr. Batra failed to meet his burden of showing that the Medical Executive Committee’s proceeding against him was arbitrary, capricious, or unreasonable.⁵ The Fair Hearing Panel recommended conditionally renewing Dr. Batra’s privileges if he agreed to waive certain rights under the bylaws and receive counseling and therapy.

Notwithstanding the Fair Hearing Panel’s recommendations, on April 12, 2016, the Medical Executive Committee recommended to Covenant’s Board of Directors that Dr. Batra’s privileges be denied. Those recommendations were subsequently approved by the board.

Dr. Batra unsuccessfully appealed the denial of the renewal of his privileges to the Appellate Review Committee, which also found that he failed to meet his burden. On June 28, 2016, the Board of Directors accepted the recommendation of the Appellate Review Committee and affirmed its decision to adopt the Medical Executive Committee’s recommendation to deny renewal of Dr. Batra’s privileges at Covenant. At that point, the Board’s decision to not renew Dr. Batra’s clinical privileges became final.

As required by law, the next step was submitting the Board’s decision to the National Practitioner Data Bank (NPDB).⁶ The NPDB is a federal program that collects and provides information about professional malpractice lawsuit judgments as well as disciplinary and termination reports to health care organizations and facilities, professional license regulating governmental agencies, and third-party payors for health care insurance coverage. On July 20, 2016, the Chief Medical Officer at Covenant instructed an employee to submit a report to the NPDB concerning Dr. Batra.

Per the internal procedures of the NPDB, Dr. Batra challenged the adverse report by requesting review of the report by the Secretary of the United States Department of Health and Human Services. On March 10, 2017, Dr. Batra was informed by letter that the Secretary had conducted a review and denied his challenge. He was also advised that the adverse report would remain on file with the NPDB.

Based on the adverse report to the NPDB and the loss of his clinical privileges, Dr. Batra sued Covenant, in June 2017, for defamation, business disparagement, tortious interference with prospective relations, improper restraint of trade, breach of contract, and intentional infliction of emotional distress. He asserted that the report was inaccurate and misleading and demonstrated a conscious disregard for the truth of the allegations. He also complained that Covenant’s attorney, Ben Davidson, made ex parte statements to the Medical Executive Committee and the Board of Directors which were detrimental to him.

Before any discovery was conducted, Covenant moved to dismiss Dr. Batra’s suit under the Texas Citizens Participation Act. See § 27.003(a). In October 2017, a hearing was held on Covenant’s motion to dismiss. No witnesses were presented; however, the trial court received affidavits and supporting documents after ruling on objections to that evidence. On November 22, 2017, the trial court signed an order dismissing Dr. Batra’s suit with prejudice, while reserving a ruling on attorney’s fees. See §§ 27.001, 27.005(c), (d). On December 19, 2017, the trial court signed an order awarding Covenant $47,500 in attorney’s fees through the hearing on the motion to dismiss, plus additional fees for any successful appeals, and imposing a $1,000 sanction against Dr. Batra to deter him from bringing similar actions. See § 27.009(a)(1), (2).

Dr. Batra then sought to appeal the trial court’s ruling by filing his notice of appeal on January 18, 2018, thirty days after the order was signed. Section 27.008(b) of the Act provides that an appellate court shall expedite an appeal, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under section 27.003. See § 27.008(b). For purposes of appellate timetables, an expedited appeal is an accelerated appeal governed by the Texas Rules of Appellate Procedure for accelerated appeals. See TEX. R. APP. P. 28.1(a), (b). See also Kim v. Kim , No. 05-16-01508, 2017 WL 1281397, at *1, 2017 Tex. App. LEXIS 3062, at *1 (Tex. App.—Dallas, pet. denied) (mem. op.). The Texas Rules of Appellate Procedure require a notice of appeal in an accelerated appeal to be filed within twenty days after the judgment or order is signed. TEX. R. APP. P. 26.1(b).

Although the notice of appeal in this case was filed thirty days after the order of dismissal was signed and was, therefore, untimely, Rule 26.3 provides a fifteen-day extension period if the notice is filed in the trial court and a motion for extension of time reasonably explaining the delay is filed in the appellate court. While a motion for extension of time is necessarily implied; see Verburgt v. Dorner , 959 S.W.2d 615, 617 (Tex. 1997), it is still necessary for an appellant to reasonably explain the need for an extension. See Jones v. City of Houston , 976 S.W.2d 676, 677 (Tex. 1998...