The Austin Chronicle

Van Boven Case Goes to Court

Medical whistleblower accused of breaching settlement

By Michael King, February 16, 2018, News

Dr. Robert Van Boven was in court on Wednesday, Feb. 7, in the latest episode of his personal war of attrition with the Lakeway Regional Medical Center (now Baylor Scott & White at Lakeway). The occasion was a hearing before the 98th Judicial District Court, heard by Judge Amy Clark Meachum, considering an offshoot of Van Boven's pending lawsuit against LRMC and BS&W. Van Boven has sued the hospital's successive administrations on various claims – retaliation, breach of contract, defamation, etc. – related in part to an Aug. 30, 2016, settlement agreement (the "contract" cited by Van Boven) between the doctor and LRMC that in theory would have concluded a history of disputes over Van Boven's whistleblowing complaints about the hospital's quality of care.

The hearing was held to consider a "counterclaim" by LRMC that it is Van Boven who has breached the 2016 settlement agreement, both by filing his lawsuit after presumably releasing the hospital of prior claims, and also by subsequent statements forbidden under a "No Defamation" provision of the settlement. As it happens, a Chronicle story figures in the latter charge: According to LRMC's pleading, a Sept. 8, 2017, story summarizing the Van Boven case and its history ("Whistleblower Sues Lakeway Hospital ...") violated a provision under which Van Boven and LRMC agreed "that they will not make any defamatory remarks, whether orally or in writing" about each other. Accordingly, LRMC is demanding Van Boven pay (or repay) $450,000 (plus legal fees) paid to him pursuant to the settlement. Van Boven's attorney responded that the counterclaim is meritless – that there has been no breach, no defamation, and no evidence of damages – and the court should dismiss it.

Plenty of water has flowed under the Lakeway bridge since Aug. 30, 2016, serving to muddle last week's arguments. Almost simultaneously with the settlement agreement, LRMC sold its interests in the hospital to BS&W, the current management, although many of the administrative staff remain. A week later, Van Boven was arrested by Lakeway police officers for "trespassing" at the hospital – although the "no trespass" warning in fact had been released pursuant to the settlement, and the administrators (and police officers) were acting without authority. (Van Boven subsequently sued for false arrest, and in a settlement was awarded $55,000.* [See correction below.])

In that context, it's not even entirely clear how to describe all the parties to these legal actions: LRMC LLC filed the counterclaim, representing the original investor group in the (now defunct) hospital; BS&W attorneys were also present at last week's hearing, and did not participate, but clearly maintain an ongoing interest in the outcome.

Central to the arguments was the relation of these dueling claims to the Texas Citizens Participation Act (TCPA), the state's version of what are called "anti-SLAPP" laws (for "strategic lawsuits against citizen participation"), intended to make it difficult for corporations or others to file lawsuits against public advocates speaking out on behalf of accountability and reform. Van Boven contends that his lawsuits and public advocacy are in defense of his and other physicians' rights and responsibilities to protect their patients and criticize medical malfeasance. The attorney for LRMC, Jeff Cody of Norton Rose Fulbright, told the court that under the settlement, the doctor had signed away his right to criticize LRMC, and is liable for breach and damages.

The afternoon hearing at the Heman Sweatt Civil Courthouse took about an hour, with Cody and Van Boven's attorney, Casey Low (of Pillsbury Winthrop Shaw Pittman) presenting their arguments, and Meachum asking them also to bring her up to speed on the case history. The judge was somewhat incredulous when Cody briefly argued that the relevant precedent "is very clear and the cases are very clear," and responded that in her reading of TCPA-related cases, she had found the opposite to be true.

Van Boven's motion for dismissal rests on his insistence that none of the statements he has made are "defamatory" (i.e., under Texas law, both false and malicious), and in any case are either contained in privileged legal pleadings (e.g., as summarized in our story) or are constitutionally protected. Moreover, said Low, LRMC is not able to show any damages, as "a defunct hospital vs. an actual individual who suffered" loss of his income and reputation because of hospital administration actions. He described LRMC's counterclaim as "bullying to spin an individual into oblivion."

Cody argued that while Van Boven's statements were indeed defamatory, LRMC's claim is more precisely based on his breach of the settlement agreement. "Dr. Van Boven does not have the same rights of free speech ... as anybody on the street," Cody told the court, "because he contracted them away." He said that in accepting the settlement payment, Van Boven had effectively said, "I won't criticize LRMC anymore."

A late addition to Cody's argument was a link to a video (provided to the judge) of an October 2017 address by Van Boven to the American Association of Physicians and Surgeons in which, Cody charged, the doctor "ties [LRMC] to the Ku Klux Klan." (Van Boven told me that in his speech he was simply making a historical analogy about hospital wrongdoers subsequently enforcing doctors' silence: "One day they're the Klan, the next day they're the sheriff.")

Van Boven did not testify, but later described the LRMC counterclaim as a "specious" and "frivolous" response to his pending lawsuit, saying "these reprisals continue to plague me and my family." He said he hopes his case will eventually result in "legal safeguards to encourage physicians to speak out on patient harm, safety, and justice."

As she gathered up the reams of paper submitted by the attorneys (including a one-sheet of the Chronicle story), Judge Meachum told the parties, "Y'all have given me something interesting to chew on." She has until March 9 to rule.

Correction: The story originally reported that Van Boven had "won a lawsuit for false arrest"; more precisely, he sued for false arrest and was awarded damages in a settlement.

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