Hello Mary Lu

Southern California Physician
Orange County Medical Association
Published August 1, 2006

OCMA Viewpoints - The SLAPP Heard 'Round the Country.
California's Fourth Appellate District Court of Appeals decided that IHHI did SLAPP Dr. Fitzgibb.
By Lytton W. Smith, MD


Medical staff leaders rejoice! California's Fourth Appellate District Court of Appeals decided that Integrated Healthcare Holdings Inc. did SLAPP Michael Fitzgibbons, MD.

Many of us monitoring medical staff issues view this as upholding our right to speak up for our patients and the quality of care in hospitals. To refresh your memory, Dr. Fitzgibbons was chief of staff at Western Medical Center Santa Ana in 2003 when Tenet Inc. announced plans to sell it and three other hospitals in Orange County.

Dr. Fitzgibbons coordinated an effort on behalf of many physicians at WMCSA to purchase the hospital from Tenet. The sale created significant controversy. However, in 2004, IHHI, a newly formed company, purchased the four hospitals. Although disappointed, Dr. Fitzgibbons and the WMCSA medical staff agreed to support the new owners.

As a public corporation, IHHI reports its financial condition to the Securities and Exchange Commission. So to stay current about IHHI operations, Dr. Fitzgibbons monitored this reporting, as did others. Unfortunately, problems were revealed and local newspapers reported IHHI defaulted on some loans.

In a private e-mail, Dr. Fitzgibbons expressed grave concerns about IHHI's financial condition and ability to maintain quality care at WMCSA. The leadership of IHHI was offended by this e-mail and sued Dr. Fitzgibbons for defamation and business interference.

The medical staff at WMCSA abhorred this action and established a defense fund to support Dr. Fitzgibbons. Tom Curtis, a veteran attorney in medical staff issues, led the defense.

Curtis claimed IHHI filed a SLAPP (Strategic Lawsuit to Prevent Public Participation). California law prohibits SLAPPs: Corporations cannot file lawsuits to prevent individuals from speaking out in the public interest.

News of the lawsuit sent a chill through knowledgeable medical staff leaders. The Orange County Medical Association, the California Medical Association and the American Medical Association rallied to support the medical staff at WMCSA. Drs. Howard Lang, Robert Pugash and John Hill--all veterans in past battles with errant hospital administrators--entered the fray.

In the first round, the Orange County Superior Court judge listened but did not hear the arguments placed before him. IHHI won. The legal fees escalated. The OCMA, the CMA and hospital medical staffs donated more to the defense fund. Dr. Fitzgibbons appealed. Tom Curtis sharpened his tongue. The CMA and the AMA filed a brilliant amicus curiae brief.

This time, the appellate judges HEARD and READ the arguments. The appeals court overruled the superior court. They decided IHHI filed a SLAPP to intimidate Dr. Fitzgibbons.

When Dr. Fitzgibbons was first sued, he could have cowered and begged to be released from the suit. But he chose the road of principle. He chose to challenge the administration's efforts to silence him.

To promote the advancement of hospitals, medical staff leaders need to be critical of themselves and of administrations. The precarious financial situations of numerous healthcare institutions across the country require that medical staff leaders take corrective actions and lead these institutions into solvency.

We owe Dr. Fitzgibbons thanks for his tenacity. His willingness to suffer through a lawsuit so that medical staff leaders have the right to voice (or e-mail) their opinions gives us strength. The pain of his SLAPP was not in vain.

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Lytton W. Smith, MD, editor for the OCMA, is a physician practicing family medicine with the St. Jude Heritage Medical Group in Yorba Linda. Dr. Smith welcomes feedback on his articles and can be reached at editor@socalphys.com.

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Southern California Physician: http://www.socalphys.com/article

Source of Article: http://www.socalphys.com/article/articles/232/1...

Strategic Lawsuits Against Public Participation (SLAPP) Resource Center: http://www.thefirstamendment.org/resources.html

OC WEEKLY JULY 27, 2006

CAN I GET A WITNESS?
DA refuses to press charges against whistleblowing doctor in road rage case

BY NICK SCHOU
Article source: http://www.ocweekly.com/news/news/can-i-get-a-w...

July 17, 2006 OC WEEKLY : The Blotter
Black Gloves, Brown Camry, Bad Case.
Filed under: Main — Nick Schou

Article source: http://blogs.ocweekly.com/blotter/black-gloves-...

The Orange County District Attorney’s office has declined to prosecute a Santa Ana health care activist for a bizarre case of road rage. Dr. Michael Fitzgibbons, a mild-mannered whistleblower who had criticized patient care at Santa Ana’s Western Medical Center, was arrested two weeks ago for waving a loaded gun during a traffic altercation as he drove to work. He was in a celebratory mood this afternoon, just hours after the DA refused to charge him.

“I believe this vindicates my statements that I am innocent and I appreciate the fact that the DA accepted that, or seemed to understand that this was not a crime committed by me,” he told the Weekly today.

But did the DA really drop the case? “We sent it back for further investigation,” said DA spokesperson Susan Kang Schroeder. “Right now, we don’t have enough [evidence] for a filing.”

Schroeder’s purposefully vague statement–she refused to say whether her office believed Fitzgibbons had committed a crime or, as he alleges, was actually set up by someone in retaliation for raising concerns about patient care at Western Medical Center–only deepens the mystery surrounding the murky road-rage incident.

Santa Ana police arrested Fitzgibbons June 28, after finding a loaded handgun and pair of black gloves in his car. They charged him with possession of a loaded weapon, carrying a concealed gun, and brandishing a firearm. From the beginning, Fitzgibbons, who says he’s never owned a gun and doesn’t own a pair of black gloves, has asserted his innocence, claiming he was set up by someone unhappy with his outspoken criticism of Integrated Health Care Holdings, IHHI, which owns Western Medical Center.

When the Costa Mesa holding company first proposed purchasing the hospital from Tenet Healthcare Corp. in 2004, Fitzgibbons testified at public hearings by State Senator Joe Dunn that IHHI’s principal investor, Dr. Kali P. Chaudhuri, had a record of buying financially troubled hospitals, only to close them and sell the real estate at a handsome profit. In May 2005, after the sale went through (without Chaudhuri, who was forced out of IHHI) he sent other hospital doctors an email saying the hospital’s financial situation was “ominous.” IHHI sued him for slander, but on June 14, a judge threw the case out of court. (To read more about Fitzgibbons and his lawsuit, see “Now With Less Chaudhuri,” and “Shut Up, Doc.”)

Despite Fitzgibbon’s clear record as a whistleblower, at first the road rage case seemed like a slam dunk. According to police, the incident took place just two blocks away from Fitzgibbons Santa Ana office, at 2 p.m., at the exact time Fitzgibbons acknowledges he was driving from his office to the hospital. They learned of the alleged crime thanks to a 9-1-1 caller who gave a perfect description of Fitzgibbons brown Camry, including his license plate number, and said he was wearing black gloves. Sure enough, when police tracked his car to the nearby Western Medical Center, and after Fitzgibbons happily submitted to a search of his car, they found the gun and gloves.

Assuming the cops indeed have a witness–whoever made the 9-1-1 call, for example–and given the fact they found the incriminating evidence in his vehicle–what further investigation would be required for the DA to slam Fitzgibbons with official charges? One possible explanation might be that whoever made that 9-1-1 call did so anonymously. That would leave the DA with a suspect, but apparently no identifiable witness, much less a victim, to the alleged crime.

Fitzgibbons, for one, is convinced a crime did occur–and that he was framed. He believes the gun and gloves were planted in his car by a person or people unhappy with his recent court victory–presumably the same person or people who made that 9-1-1 call.

“It’s a fairly complex crime,” Fitzgibbons said. “It involves some planning and forethought and obviously it is a crime that someone paid for. I don’t think that the people that actually did the crime had any interest in me personally. I think they were just hirelings to carry it out.”
Fitzgibbons says he told Santa Ana cops that he found scratches on his car door that he thinks show someone broke into his vehicle shortly before the crime occurred. The cops responded that they had already completed their investigation. When they failed to return further telephone calls from Fitzgibbons, he filed a report the Irvine police, claiming that whoever broke into his car probably did so at his Irvine house.

“The Irvine [cops] pretty much blew me off too,” he said. “They said they would take a statement from me but nothing more, and that I had waited too long to tell them about it. I told them I’ve lived in this community for 24 years, pay my taxes and have never been arrested. I’m just trying to find out who did this.”

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Source of article:
http://www.ocweekly.com

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I am completely innocent of the misdemeanor charges filed against me, June 28. I did not brandish a gun. I do not own a gun. I never saw or touched the gun that was planted in my car.

Now Western Medical Center Administration has pushed for a Medical Staff investigation of me, inspite of the fact any reasonable person knows this is a setup and I was framed.

Thank you for pursuing the truth in this matter.

Michael W. Fitzgibbons, MD
Former Chief of Staff Western Medical Center
Board Member, OCMA
Board Member, Orange County Foundation For Medical Care