Court Rules Against Tulare Hospital Officials in Confidentiality Case

Officials with Healthcare Conglomerate Associates and the Tulare Regional Medical Center were wrong in attempting to seek sanctions against a doctor for allegedly speaking to the Valley Voice, a Tulare County judge found this week.

The case, Kumar, et al. v. Betre, was borne from a larger ongoing suit, Tulare County Regional Medical Staff v. Tulare County Local Healthcare District, et al. In the Betre case, the Hon. David Mathias granted Dr. Abraham Betre’s special motion to strike a complaint filed by attorneys for Dr. Benny Benzeevi, Dr. Rebecca Zulim, Dr. Parmod Kumar and Dr. Ronald Ostrom.

At issue was whether or not Betre had violated confidentiality bylaws when speaking with the Valley Voice in March of this year about the larger case (the underlying action).

Benzeevi, Zulim, Kumar and Ostrum, in their complaint, asserted that when Betre spoke to the Voice’s reporter, he knew of restrictions imposed by the former Medical Staff’s bylaws and rules. They also claimed TRMC officials objected to including confidential peer review information, and intended to prevent public disclosure of such information.

The plaintiffs also charged that Betre intentionally disclosed the information to the media solely to harm them, and not for any legitimate reason relating to the underlying action or to Betre’s position as Chief of Staff for the former medical staff of TRMC.

The claims were focused on an article which appeared in the March 16, 2016 edition of the Voice, specifically the article entitled “Tulare Regional Medical Center Fires Entire Medical Staff of 135.”

The allegation was that the article contained many statements by or attributed to Betre regarding purported confidential peer review proceedings that involved the plaintiffs.

The plaintiffs’ complaint included two counts of invasion of privacy (Intrusion Into Private Affairs and Public Disclosure of Private Facts) Intentional Interference with Prospective Economic Relations, Unfair Business Practices under Business  and Professions Code §17200, and Injunctive Relief.

Betre countered with a special motion to strike the complaint, and Judge Mathias found on August 11 that Betre’s actions constituted protected activity that fall within the scope of the anti-SLAPP statute.

A strategic lawsuit against public participation (SLAPP) is intended to censor, scare, and quiet critics by ladening them with the cost of a legal defense–thereby making their criticism or opposition untenable. California is one of a few states nationwide that have laws intended to curtail such lawsuits.

Mr. Welsh, counsel for the plaintiffs, opened the day’s proceedings by requesting that Judge Mathias clear the courtroom of the public — including reporters from the Voice — to preserve the confidentiality of privileged information. He said they would then submit a redacted transcript and that this was the only way that confidentiality could be protected.

This was rejected out of hand, as Judge Mathias said that he was not inclined to close the court because of the overriding public and state interest to keep it open, elaborating that, while some of the information may be sensitive, it was his opinion that 97% of it is already in public record.

Welsh said no matter how small, even a “kernel of information of the peer review information” could be used in an appeal.

“We have sought to suppress information and file this case under seal but Dr. Betre did a judicial run around and went to the press,” Welsh said.  “We did everything we could to preserve the information under seal and keep it confidential and were rebuffed by the other side every time. Dr. Betre broadcast it to the entire society and went to the press.”

Welsh continued, “We abided by the court rules and were undermined.”

The judge responded by saying that the hearing would absolutely remain public.

Welsh based his complaint on the fact that the Valley Voice stated that it relied on information provided by sources. Even though several sources were named in the article, Welsh insisted that all of the confidential information came from Betre.

Welsh quoted from the Editor’s note on the 16 March article, stating that it proved his case that the information did not come from the Valley Voice but from Betre.

“It says it right there,” Welsh said.

The following is the Editor’s note in question:

Editor’s Note: This is a revised story from the 3/17/16 print edition, meant to further clarify some facts. Any comments made in the 3/17 print edition article are attributed to interviewed sources and are not a representation of the reporter or the Valley Voice. Because information came in after we went to print on 3/15 that corrected some of the statements of the people interviewed, the Valley Voice wanted these corrections integrated into the original article so everyone’s side is heard. Please also find a link to Tulare Regional Medical Center District’s lawyer’s letter and the court order ruling on 3/17 against the hospital staff on our facebook page. If needed, any corrections will be made in the next print edition of the Valley Voice, as well.

Welsh insisted that Betre is the interviewed source because Betre would be the only person who had firsthand knowledge. Welsh also was adamant that because Betre did not supply a declaration of non-divulgence he must be guilty.

In his tentative ruling, Judge Mathias wrote, “The plaintiffs’ action is based on the premise that Betre disclosed confidential peer review information to the Valley Voice. But the plaintiffs offer no admissible evidence that would indicate that Betre disclosed confidential information to the Valley Voice. Their speculative and unsupported allegations that they “believe” that Betre disclosed confidential information to the press are insufficient to defeat the within anti-SLAPP motion.”

“This article discloses virtually no potentially confidential information and the few short sentences that may be deemed sensitive are not attributed to Betre in any way. The Article states that the information used to write the article was obtained from publicly available court pleadings (a right guaranteed and protected by the First Amendment) and by Dr. Benzeevi’s own lawyers in the underlying action.”

Welsh responded by saying that he did not believe, and that no one should believe, that the reporter came to the courthouse and read 500 pages or that he paid 50 cents a copy to take them home.

“The reporter did not read the court documents. It’s not believable.”

Counsel for the defendant said that the burden is on the plaintiffs in an anti-SLAPP and that it did not matter who went to the courthouse to read the pleadings.

The plaintiffs next focused on the protection of the peer review process, which Welsh argued as being in the public interest, maintaining that confidential peer review information needs to stay confidential and can not be subject to discovery.

“If the medical peer review process is not kept confidential, no doctor in their right mind would ever participate in the process again,” Welsh said, claiming that the judge’s tentative ruling would, if allowed to stand, have the potential to destroy future medical review processes.

Such an assertion was a “stretch,” Judge Mathias responded.

Welsh further maintained that medical peer review was an area protected by the constitution as a right to privacy. The doctors who participate in the medical peer review process do it voluntarily, he said, and expect a certain level of confidentiality.

“You don’t have to ruin a physician’s practice or reputation while in litigation. But Dr. Betre said, ‘no, we will litigate this in the press.’”

The court also ruled that, “the subject matter of the Valley Voice article involves a matter of public interest that puts it within the scope of the anti-SLAPP statute.”

“Here, it cannot be disputed that the safety of patients at a public hospital is a matter of public interest. Likewise, the actions taken against the then existing medical staff  is also a matter of public interest, particularly where the Board’s conduct is alleged to have violated laws specifically enacted to ensure public and patient safety,” Mathias wrote.

The Voice will continue to report on the Tulare Regional Medical Center’s various legal cases.