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The Doctors in Van Boven's Corner

Baylor Scott & White disputes amicus submission in Van Boven hospital litigation

By Michael King, August 24, 2018, News

"Physicians must be able to speak out in the interest of patient care without fearing facing protracted litigation defending statements made in the reasonable belief of truthfulness." That is from an amicus brief submitted in May of 2016 by the Texas Medical Associa­tion, in support of Dr. Robert Van Boven's lawsuit against the former Lakeway Regional Medical Center. Van Boven had charged the hospital with retaliation against him for reporting inadequate or dangerous care at LRMC, in litigation that continues in tandem with related litigation against LRMC's successor, Baylor Scott & White Medical Center – Lakeway.

"[R]aising valid objections about hospital procedures that are harmful to patients, as Plaintiff Van Boven did in an appropriate manner, must be fully protected speech at the core of First Amendment safeguards against retaliation that misuses law enforcement." That is from an amicus brief submitted recently, on July 25, by the Association of American Physicians & Surgeons in the same litigation (the reference to law enforcement relates to an illegal arrest of Van Boven at LRMC by Lakeway police, for which the city later paid a settlement).

In an Aug. 15 hearing before District Judge Scott Jenkins, BS&W objected to the amicus brief. Attorney Michael Klein argued that it was inappropriate, that AAPS appeared to be a "friend of the plaintiff" (because Van Boven had previously spoken at an AAPS conference) rather than a "friend of the court," and that the brief offered "nothing probative to aid the court." Klein's brief asked that Jenkins prevent the filing of the amicus, or else that Van Boven be prevented from citing it at trial. "This case should be decided on the facts and the law," argued BS&W, "not by the cheering section" of Van Boven.

Jenkins responded that he couldn't "unring the bell" (i.e., unfile from the court record an already filed brief), nor could he direct an eventual trial judge how to handle the submission, although he did note the previous brief filed more than two years ago by the TMA. AAPS attorney Laurie York noted that "there is no conflict" relationship between the medical organization and Van Boven, and reiterated that the amicus was filed "as a matter of public policy interest."

After the hearing, Van Boven said he'd had nothing to do with the drafting of the AAPS brief – "I hadn't even read it until after it was filed" – and rejected Klein's claim that he was engaging in a media campaign against the hospital. "He's accusing me of holding a circus – a sophomoric procedural exercise – but that's exactly what he was doing with this motion [to exclude the amicus from the record]."

Jenkins told Klein he should recommend that BS&W engage in mediation of Van Boven's lawsuit. Klein said his client had considered it, but declined.

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