Memorial Hermann Health System v. Miguel A. Gomez, III, M.D., and Miguel A. Gomez, M. D., P.A.

• Court: Court of Appeals of Texas
• Decided: August 15, 2019
• Docket: 01-17-00632-CV
• Status: Published

Opinion

Opinion issued August 15, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00632-CV ——————————— MEMORIAL HERMANN HEALTH SYSTEM, Appellant V. MIGUEL A. GOMEZ, III, M.D., AND MIGUEL A. GOMEZ, M.D., P.A., Appellees

On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2012-53962

OPINION

Appellees, Miguel A. Gomez, III, M.D., and Miguel A. Gomez, M.D., P.A.

(Gomez P.A., or, collectively, Gomez), sued appellant, Memorial Hermann Health

System (MHHS), for defamation, business disparagement, tortious interference

with prospective business relations, and restraint of trade based on two main allegations—that MHHS had used misleading data and a “whisper campaign” to

eliminate competition by defaming Gomez and disparaging Gomez P.A.

Following a lengthy trial, the jury found in favor of Gomez and Gomez P.A. on

their defamation and business disparagement claims and awarded them more than

$6 million in compensatory and exemplary damages.

In six issues on appeal, MHHS argues that: (1) the alleged defamation and

disparagement described in the jury charge through Gomez’s testimony regarding a

conversation he had with an MHHS administrator was not published to a third

party; (2) there was no evidence that the defamation and disparagement described

in the jury charge as a statement made by an MHHS physician liaison to an

employee of a competitor hospital caused any of Gomez’s alleged damages; (3) the

alleged defamatory and disparaging statements were protected by qualified

privilege; (4) there is no evidence of causation generally; (5) there is legally

insufficient evidence of lost profits; and (6) alternatively, the judgment should be

reformed to eliminate a purportedly improper “double recovery” and the award for

exemplary damages.

In a contingent cross appeal, Gomez and Gomez P.A. argue that trial court

erred in its submission of their claim for tortious interference with prospective

business relations to the jury.

We affirm.

2 Background

A. Prior to 2008, Gomez Practiced Exclusively with MHHS

Gomez practiced as a cardiovascular surgeon for MHHS at its Memorial

Hermann/Memorial City location (MH/MC) beginning in 1998. He testified that

Dr. Don Gibson, “the primary heart surgeon there,” was looking for another

surgeon to join his group. Over the next ten years, their practice continued to be

successful.

Dr. Phillip Berman, a friend and cardiologist who had referred patients to

Gomez, testified that, leading up to 2009, he and other cardiologists “thought

[Gomez] was an excellent surgeon” because “[h]e was successful. He was doing

quite well. He did the robotic surgery. Patients did well.”

B. Late 2008 Through Early 2009, Gomez’s Practice Experienced Changes

However, in 2008, the West Houston-medical market had begun to change

in several material ways. MH/MC became concerned regarding mortality rates in

its cardiovascular surgery department.1

In 2008, Methodist Hospital System moved forward with plans to open a

new hospital in West Houston, Methodist West Hospital.

1 Records showed that from 2005–2008, Gomez had fourteen mortalities and the three other cardiovascular surgeons at that hospital had mortalities ranging from zero to eleven each. However, the record indicates that this data was not formally compiled by MH/MC or MHHS until the fall of 2009. 3 Also in 2008, the then-CEO of MH/MC, Wayne Voss, left and ultimately

went to work with Methodist and became the CEO of Methodist West Hospital.

Throughout late 2008 and early 2009, Methodist West recruited other employees

from MH/MC as well. After Voss left, MHHS made changes at MH/MC,

including hiring Keith Alexander as its new CEO.

C. Early 2009, Gomez Looked into Opening a Practice at Methodist West and an MHHS Employee Made the “Todd Statement”

Gomez testified that sometime in late 2008 or early 2009, people from

Methodist West approached him about practicing at the new hospital, and he

testified that he was interested in expanding his practice. This interest was based in

part on concerns he had regarding the change in administration at MH/MC and

dissatisfaction with “how [his] patients were taken care of.” Gomez agreed to

pursue opening a practice at Methodist West and began communicating with

people, including his partner, Gibson, regarding his new involvement with

Methodist. He indicated that he intended to perform surgeries at both hospitals.

However, others at MH/MC believed that Gomez might begin working exclusively

at Methodist West. Both Portia Willis, who was responsible for marketing for

MHHS, and Francesca Sam-Sin, who was a patient relation representative for

MHHS, testified that, early on, MHHS administrators believed that Gomez was

4 discussing moving his practice or splitting his practice,2 including the robotic

procedures, to Methodist West, which would be a “[b]ig deal” because MH/MC

would lose business.

At some point in the first half of 2009, while Methodist was still considering

and negotiating its future relationship with Gomez, Jennifer Todd—a physician

liaison with MHHS—contacted Cyndi Pena, who was by that time working as a

physician liaison with Methodist West.3 Pena testified that Todd told her, regarding

Gomez, “Be careful. We heard he’s going to Methodist and I just want to let you

know there’s things being said here, and they’re pertaining to the bad quality,

mortality rates. There was—I heard bad quality, high mortality rates, unnecessary

surgeries.” Pena further testified that Todd told her the allegations “were serious

enough that she was letting me know, because they had heard in meetings that Dr.

Gomez had plans to go to Methodist West.”

Pena testified that Todd’s statement “concerned [her] enough [that she] took

the information to [her] CEO as part of [her] job” at Methodist, and she 2 Byron Auzenne, an MHHS employee, testified that “splitter physicians”—or physicians that split their practice between more than one hospital—were very common and estimated that “probably 90 percent or greater” of physicians fell into this category. 3 The record is unclear regarding exactly when this conversation took place. Pena testified that she was working for Methodist at the time, and that she began working for Methodist on February 23, 2009. Thus, the conversation probably occurred in the spring or summer of 2009, after Pena began working there in February 2009, and before Methodist ultimately decided to enter into an Agreement for Physician Services with Gomez in September 2009. 5 recommended, “I would be careful to vet him because things like that don’t just

come out of nowhere.” Pena also testified that she believed the things Todd told

her because “it was out there already. It’s hard to explain. It was in the ether, it

was out there. So, in hearing that, I absolutely did believe it. And as I said, because

I witnessed it, you know, I witnessed that happening and heard it from multiple

physicians.” Pena also stated that Methodist West did look into Gomez’s

qualifications and, because he already had a relationship with the Methodist CEO,

Voss, Methodist decided to hire him.

D. Also in Early 2009, MH/MC Hired Auzenne

As Methodist was announcing its plans for a new hospital, MHHS was also

making some changes, beginning in early 2009. Prompted by federal-government

efforts to publish data about the quality of hospital care and concerns coming from

cardiologists and other specialists associated with the hospital, MHHS initiated

data-driven programs throughout its system, including in its cardiovascular surgery

(CV surgery) program at MH/MC. As part of these efforts, MHHS hired Byron

Auzenne.

Early in Auzenne’s tenure as the heart and vascular service line leader, he

received a recommendation from the Clinical Programs Committee,4 through its

4 The Clinical Programs Committee, or CPC, is a committee the Memorial Hermann Physician Network (MHMD), an independent physician organization that is associated with MHHS. MHMD serves to organize physicians to promote quality 6 Cardiovascular and Thoracic Subcommittee, which was chaired by Gomez at that

time, regarding the hospital’s use of STS data.

“STS data” refers to data that the Society of Thoracic Surgeons (STS) has

compiled in a database administered by the Duke Clinical Research Institute.

Among other things, STS tracks seven risk-adjusted procedures that are measured

based on information provided from physicians and hospitals. Participants—i.e.,

the hospital, clinic, or individual surgeon—collect and report data from their

treatment of patients, and then transmit that data to STS. STS analyzes the data and

processes it into a database that hospitals and healthcare providers across the

nation can use to make decisions about care.

The subcommittee chaired by Gomez recommended that the heart and

vascular service line at MH/MC present “STS data by facility to the CV surgery

subcommittee and each facility’s physician group.” Based on this recommendation

and at the prompting of CEO Alexander, Auzenne started developing “a process

for reviewing [the hospital’s] STS data (i.e., the raw data that would be reported to

STS).”

and safety, and it promulgates new policies and procedures for the system. MHMD and its committees include physicians who have privileges in the hospital system, and it provides some peer-review, development, and oversight functions for the various areas of practice.

7 MHHS originally focused on mortality data because it “did not want to dive

into too many things initially” and “mortality was the most important.” Mortality

data was also a focus because, according to Auzenne, the hospital “had received

word from some of our cardiologists that they were concerned about [the]

mortality rate within the program being high.”

Auzenne realized in February 2009 that MH/MC had a “weak” process for

collecting the raw data that was necessary to report to STS. Among other concerns,

Auzenne stated that physicians were all documenting their cases in different and

inconsistent ways, which impacted what data could be submitted to STS, and he

also realized that physicians were not reviewing the data that was submitted to STS

and were not generally aware of what was submitted with regard to their cases.

E. Summer 2009, Concerns about the Raw STS Data Led to Peer-Review of All CV Cases

On June 4, 2009, Auzenne and Alexander met with Dr. Rick Ngo, the chair

of MH/MC’s peer review and surgical performance improvement committee, and

Dr. John Abramowitz, the chief of staff. Alexander wanted to discuss concerns

raised by the raw STS data with Abramowitz and Ngo because they were “two

physician leaders,” and, “in case this turns into peer review, we wanted to engage

them early in the process.”

MHHS decided to have CV surgery cases reviewed by an outside consultant.

Dr. Ngo testified that it was not his idea to send the cases to an external evaluator,

8 and he felt that MH/MC’s Peer Review Committee was “circumvented” by the

hiring of the outside peer review consultant. The hospital felt it was important,

however, because, out of its four CV surgeons, Gibson was at that time the chief

medical officer for MH/MC and Gomez was a member of the board of the

Memorial Hermann Physician Network, MHMD, an independent physician

organization associated with MHHS. They did not send every case to external peer

review, just cases with mortalities, “major complications,” or prolonged ICU stays.

This review was done based on the medical records of the patients in the relevant

cases, along with the physicians’ documentation and other records from the

patients’ time in the hospital. These were sent to an organization called National

Peer Review for a full review.

F. Fall 2009, Gomez Entered an Agreement with Methodist West, MHHS Made an Internal Presentation of CV Surgical Data

On September 14, 2009, Gomez signed a confidential Agreement for

Physician Services with Methodist West that made him an independent contractor

to provide physician services at Methodist. The Agreement also provided that he

would hold an “administrative” position as the “Co-Director of the Cardiovascular

Robotics Institute” and “Senior Advisor for Cardiovascular Surgery Service

Development at [the] West Houston campus.” This Agreement was executed in

advance of Methodist West’s officially opening its cardiovascular surgery

program, while the hospital was still building this program.

9 On September 25, 2009, Gomez was approached by his partner, Gibson.

Gomez testified that Gibson told him “that the hospital [MH/MC] had data that

showed that I had a high mortality [rate],” which “essentially [said] that I was a

bad surgeon.” Gomez testified that Gibson said the mortality rate data indicated

that there was a “safety issue” and that “they were concerned that the government

would look at these numbers and come in and shut down the [cardiovascular]

surgery program.” According to Gomez, Gibson told him that “because of those

reasons you’re going to be suspended or you’re going to be proctored.”

Proctoring is a process by which a surgeon is supervised while providing

services. Regarding the significance of having privileges suspended or being

“proctored,” Gomez testified:

[T]hat’s not something that you keep to yourself. It’s impossible. That’s something that you have to report for the rest of your life as a physician any time you get privileges at any other hospital and the hospital you’re at everyone is going to know, every doctor, every nurse all the—they’re going to know that you’re a suspended doctor, a proctored doctor. And so basically your reputation is ruined.

Gomez testified that he “was in shock” following this conversation with Gibson.

Gomez decided to approach Dr. Ngo to discuss the concerns regarding his

mortality rate.

On September 27, 2009, Gomez called Ngo. According to both Gomez and

Ngo, Ngo was not aware of the data that MHHS was relying upon to determine

that Gomez had a high mortality rate that presented a “safety issue” to the hospital.

10 Gomez testified that he was concerned to learn that the surgical peer review

committee knew nothing about the individual surgeon mortality data because, in

his mind, MHHS employees “were subverting the process. . . . These types of

issues are supposed to go through the peer review process.”

Ngo testified that he was the chair of the Surgical Peer Review Committee,

and it was the committee’s job to review the performance of various medical

personnel on a case-by-case basis to evaluate whether the care given in each case

was appropriate or whether any problems needed to be addressed. However, he

was not concerned that he was unaware of the specific mortality data being used by

MHHS. He did not recall specifically asking that there be “a surgeon mortality rate

by CV surgeon created,” but he also stated, “[I]f someone approached me with that

idea, I would have agreed to that.” He also believed that the decisions about

“what’s supposed to be evaluated” would fall “under the umbrella of the quality

department at Memorial City,” calling it “more of an administrative duty.” Ngo

further testified that he was not concerned that someone at the hospital was “doing

something with data that [he] didn’t know about”:

It did not bother me because I don’t have the time or access to all that data to do that initial analysis. But then it’s my job then to dissect that data and depending on how that data looks and the methodology as far as the acquisition of that data, I wouldn’t say that administration engaging and trying to find this data bothered me. I think that’s a good thing. I think it’s important to look at data in metrics, but the key is to do it the right way with the right methodology.

11 Ngo also testified that when data raises performance concerns for a particular

physician, it was his committee’s job to investigate further, and he did so in

Gomez’s case.

On September 29, 2009, MH/MC held a cardiovascular surgery discussion

meeting with medical and administrative hospital leadership, including Auzenne.

This meeting involved the presentation of a slide show reviewing data for the CV

surgery program. It identified “Primary Areas of Concern” as including the 2009

“overall mortality rate” for the hospital’s CV surgeries of 7.1%, comparing that

mortality rate to national averages, and it identified “[t]wo CV surgeons [as] the

primary drivers in the unfavorable mortality rate.” The surgeons were identified

only by number—one surgeon’s number was listed next to “40%” and another’s

was listed next to “11.1%.” The slide show also contained data reflecting the

“current situation” in terms of total volume of surgeries for the hospital and

volume by surgeon from 2005–2009, comparing them to national averages. Some

of this data was risk adjusted and some of it was not.

On another slide in this presentation, Auzenne presented a “Risk Adjusted

Observed to Expected Ratio” (also referred to in testimony and presentations as the

“O/E” ratio) for mortalities for four surgeons, again identified only by number.

The slide stated that a ratio greater than one—indicating that more deaths were

observed to have occurred than would be expected—was “unfavorable.” The data

12 showed that two surgeons had performed better than that marker, with a ratios of

zero and 0.0874142, while two surgeons’ performance fell below that standard,

with ratios of 3.94624 and 7.65733. Again, the surgeons were identified by number

only. This slide also showed a “facility overall” ratio of observed to expected

mortalities of 2.57661, and it contained a notation stating, “Average STS O/E ratio

for like sized Cardiovascular Surgery Programs is .08 to 1.2 [with] 1,200 surgeons

working in more than 600 hospitals.”

The next slide reflected “Operative Mortality within 30 days” for each of the

four surgeons, again identified only by number, and the hospital total from 2005

through 2009, and it provided for comparison the “Cleveland Clinic 2008

Mortality Rates (emergent and non-emergent).” Finally, there was a slide showing

the “2009 Operative Mortality Percentage by Physician,” with the four surgeons

identified by number, breaking down “total mortalities” with both a number of

procedures performed and then a percentage reflecting the mortality rate, and then

performing a similar breakdown across several specific risk-adjusted procedures.

On October 23, 2009, motivated in part by the complaint Gomez had made

to Ngo prior to the slide show, there was another cardiovascular surgery discussion

meeting in which Auzenne presented Ngo with essentially the same presentation

from September 29. Ngo examined the data generated by Auzenne, and he testified

that:

13 the first part of the slide that jumped out to me was Bullet Point No. 2 [which stated that “[t]wo CV surgeons are the primary drivers in the unfavorable mortality rate” and identified two surgeons, by number, as having 40% and 11.1% mortality rates]. In our world the word “mortality” jumps out. But, you know, the very clear profound statement of two CV surgeons are the primary drivers of this, you know, unfavorable mortality rate, that’s the item that jumped out at me.

Ngo testified that when he originally viewed the slide, he “didn’t know who they

were directing it at because I don’t know [who] the five digit

identifier . . . pertained to,” but Auzenne later shared with him that Gomez was one

of the two CV surgeons in question.

Ngo asked Auzenne and Dr. Bobbi Carbonne, who was also in a position of

administrative leadership at MH/MC, questions regarding the data such as “where

did that statement come from” and “what was your process to generate that

conclusion.” Ngo also expressed concern that, “by [their] own definition and

metrics,” Dr. Gibson should also have been reflected as a surgeon with a

concerning mortality rate, but he was not. Ngo stated that, to the extent data might

be used to “make one surgeon reveal[ed] to be a problem versus another not,” that

would be a problem, stating, “It’s just not right. It’s not the fair and objective thing

to do.” Ngo could not remember the “exact verbal response” to his questions

regarding why Gibson’s individual mortality rates were not identified as a driver of

the overall mortality rates, but he remembered that he asked for “the ability for our

[peer review] committee to review every single case of the four surgeons that were

14 involved that Memorial City’s administration used to generate the data and let us

review each individual case on our own and grade them on our own.”

Ngo testified at trial that, looking back, he was bothered by what had

happened:

You know, Dr. Gibson and [Dr. Michael] Macris [the two other CV surgeons at MH/MC] at the time were—well, Dr. Gibson, I believe, he held some very high physician/volunteer/administrative, maybe even paid positions, including at some point being Chief Medical Officer for Memorial City [Hospital], and so it reeks of favoritism.

Ngo testified that, over the next two or three months, the Surgical Peer Review

Committee was able to review all of the surgical cases, i.e., all of the cases from

which the raw data was taken.

On October 27, 2009, there was a CV surgery quality review meeting.

Gomez characterized the meeting as a “peer-review” meeting to review “what the

hospital was calling my STS data.” This meeting was attended by Gomez, Ngo,

Carbone, and Abramowitz in addition to Auzenne. There were no statistics

presented at this meeting, just raw data. Auzenne testified that when Gomez saw

his own mortality data, “he got upset,” and he stated that “this data is statistically

invalid.” Ngo and Gomez felt that the hospital needed to look at a broader period

of data, not just for one year, and that the hospital should be careful to look at risk-

adjusted data.

15 On November 11, 2009, there was a cardiovascular surgery meeting in

which the participants, including Auzenne and the CV surgeons, reviewed

hospital-wide data for the CV surgery program. No individual surgeon data was

examined as part of the meeting, but each surgeon got a sealed and private

envelope containing his or her own raw data.

On December 17, 2009, the CV surgeon data and external peer review

results were presented to Dr. Ngo’s Surgical Peer Review Committee. Ngo

requested that Auzenne present the non-risk-adjusted mortality data to his

committee and to all four CV surgeons. The peer review process confirmed there

was room for improvement but no need for corrective action.

G. 2010 through 2011, Peer-Reviews are Completed, Gomez Continued Practicing at MH/MC

On February 9, 2010, there was another cardiovascular surgery meeting and,

similar to what occurred in November 2009, the presentation focused on hospital-

wide performance markers. Again, the CV surgeons got their individual data by

envelope, with none of the physicians seeing the individual data of any other

physician, but all seeing the performance markers.

Also in February 2010, Ngo, as the chair of the peer review committee,

concluded the months-long investigation into the concerns over the quality of the

CV surgery program, including Gomez’s cases that had resulted in mortalities. Ngo

and the committee concluded that there was no “quality of care issue with any of

16 the four surgeons that had their data presented.” Specifically, the committee

determined that there was no need for “any proctoring or changing of privileges or

anything and the go-forward recommendation was that we would, as we did with

every surgeon, continue to closely track and trend and monitor the care of their

future patients.”

Ngo testified that his committee also made recommendations regarding the

surgeon mortality data used by Auzenne. Ngo stated, “One of the major areas that

we thought in the process that was extremely flawed was the lack of risk

adjustment with each of these individual cases” because “every single case is

different. There’s a different level of acuity, especially in the specialty that’s as

complex as cardiovascular surgery.”

Ngo also testified that the committee’s recognition of those complex factors

that are considered on a case-by-case basis led to its recommendation that, going

forward, MHHS rely more on STS data, i.e., data that had been risk adjusted rather

than raw data, stating:

[I]n looking at this data we ask what governing society in this country that kind of determines quality metrics and evaluations and so forth for cardiovascular surgeons and that’s the Society of Thoracic Surgeons. They have a very clear process and methodology on how to risk adjust individual cases. . . . Some surgeries and some patients are just harder than others. And so when you’re comparing the hardest patient in a situation to one that’s a lay-up and a slam dunk, that’s not fair.

17 Regarding Gomez specifically, Dr. Ngo testified, “[I]n the review of those,

you know, 20 some-odd cases of Dr. Gomez, there were some where we did feel it

could have been an area for particular improvement. But in looking at all of those

we didn’t feel that there was a major issue with his quality of care.” Ngo testified

that sharing overall surgeon mortality data that was not risk adjusted was

“absolutely not” the right thing to do “because that would hinder referral patterns,

damage reputations, et cetera.” Without identifying any particular use of the data

by MHHS, Ngo testified generally that continuing to show surgeon mortality data

without risk adjustment to cardiologists and those who refer for CV surgeries

would be “atrocious, damaging, [and] way over the line.” Regarding mortality

data, Ngo testified that using mortality data—i.e., “if a physician has a hundred

surgeries in a year and four of them die”—as a starting point in evaluating areas for

improvement was appropriate: “There’s nothing inappropriate in saying that’s a

four percent mortality rate and the next step would be to individually look at each

case.” Ngo testified that that was what his peer review committee had done in this

case. By contrast, the data slide shows and surgeons’ meetings had not used only

risk-adjusted data but had included raw data.

On February 18, 2010, Dr. Ngo sent each CV surgeon, including Gomez, a

letter stating that the issues considered during the third-party review were closed.

Gomez testified that he was relieved by the peer review committee’s finding, but

18 the peer review process was “difficult” because he felt that “the whole focus was

Dr. Mike Gomez, is he a bad surgeon.” Gomez stated that when he received the

notice from Ngo in February 2010 about the findings of the peer review committee

determining that there were no safety concerns regarding his surgical abilities, he

thought the issue was resolved: “I thought, okay, they understand, you know, what

they did wasn’t right. . . . [T]he way they were looking at the numbers wasn’t—it’s

not the right way to do it.”

Gomez testified that, for the next year and a half, he had no indication that

MHHS employees Auzenne and Alexander were continuing to create and use

individual surgeon mortality data, contrary to Ngo’s recommendation from the

peer review committee.

H. November 1, 2011 Meeting of Cardiovascular and Thoracic Surgery Subcommittee and the Auzenne Statement

On November 1, 2011, the Cardiovascular and Thoracic Surgery

Subcommittee held its quarterly meeting. According to the minutes, approximately

nineteen committee members or interested parties were present, including Gomez.

Gomez, however, testified that there were thirty to forty people present.

The power point presented at this meeting included a segment on STS data

review. It included a slide showing heart surgery volume by surgeon for twenty

MHHS surgeons, who were identified only by a letter. There was a slide showing

the “distribution of predicted mortality risk in STS adult cardiac surgery database

19 2010 by procedure,” and there was a chart showing how the actual observed

performance of each of the twenty surgeons, again identified by number, compared

to STS’s predicted mortality and complication rates by procedure type.

Gomez testified that Dr. Macris, who was by that time the chair of the

Cardiovascular and Thoracic Surgery Subcommittee, “again” used a 2010 version

of the individual surgeon mortality data at the November 1, 2011 meeting. Gomez

testified that, as before, at the beginning of the presentation each surgeon received

an envelope “to let them know which surgeon they were” in the data shared during

the presentation. This presentation did not include any “overall” mortality rates—

it looked at the raw numbers of individual doctor mortality rates, as opposed to

STS’s risk-adjusted procedures. Gomez testified that, after the presentation was

over, “we had a discussion about this lie. I got up and said that the data wasn’t

accurate[.]” Among other issues, Gomez testified at trial that the data presented in

this meeting attributed to him a surgical death that he had not been responsible for,

and Gomez believed, in any event, that the data was not supposed to be used any

longer.

Gomez testified that when he objected that the data “wasn’t statistically

accurate or valid,” Dr. Macris “looked at me and made a gesture to me and said,

‘Only the surgeons that look bad need . . . to be concerned.’” Gomez stated that

Macris’s comment “made it pretty clear that I was one of the red flagged

20 [surgeons]” and that “everybody at the committee knew that I was one of the red-

flag surgeons.”

Following the November 1 meeting, Gomez testified that he “was

upset . . . when this data was presented again,” so he spoke to Auzenne and asked

him “why is this misleading data . . . being shown again?” Gomez believed that

the use of the individual surgeon mortality data had stopped in 2010 following

Ngo’s recommendation. However, Gomez testified that Auzenne told him after the

November 1meeting,

that he had spoke[n] to CEO Keith Alexander and they had discussed it and they felt that the data needed to be shared, that we needed to be a transparent organization, that this was a safety issue, a safety issue, and that means they can do what they will with the data and that he was going to show it and had shown it to cardiologists at cardiology meetings and other physicians who referred to me so they can make informed decisions when they refer patients.

Gomez testified that he understood Auzenne to be saying that he had been

showing the data to Gomez’s referring doctors since 2010, and Gomez stated that

he “spoke to several doctors after this and others and was able to confirm that what

[Auzenne] told me was exactly what he was telling me.” Gomez testified that it

was “difficult” to hear that this had been going on for the past eighteen months,

“but it made it pretty clear what was happening, why I was seeing a decrease in my

surgical bodies over that time period, so it kind of made sense; and I just was very,

21 very upset that again that the peer review process had been subverted and again

that my reputation was being ruined.”

I. 2012, The “Whisper Campaign” Led Gomez to Resign his Privileges at MH/MC

Berman testified that, despite doctors’ previously high opinion of Gomez

prior to 2009, “amongst the cardiologists” affiliated with MHHS, there was

eventually a “general consensus” that “Dr. Gomez has a high mortality rate.”

Berman was asked:

Q. How real was this whisper campaign that you were seeing?

A. It was real.

Q. What do you mean by that?

A. It means it affects your—it affects—I wouldn’t say my opinion, because I like to speak for myself. But I think knowing other cardiologists, a small community, I think it affected their decisions about who they would choose for a surgeon.

Q. Mortality data, how significant is that to any physician when you’re talking about a surgeon?

A. It’s everything. I mean, a patient walks in the hospital, they want to make sure they leave the hospital. One death is more than you want.

Q. Was there any doubt that the data, wherever it was coming from, whatever it showed, was coming from Memorial Hermann/Memorial City employees?

A. I would think that’s the only place it could come from.

22 Berman went on testify that the gist of the statements about Gomez was that “he

had excessive mortality, which would imply he’s not a good surgeon.”

However, Berman also testified he never saw or heard any data relevant to

Gomez’s individual surgical performance. Berman testified that he attended

cardiology department meetings and meetings for the Clinical Programs

Committee’s cardiology subcommittee (which was separate from the

cardiovascular and thoracic surgery subcommittee) and he never saw or heard any

comment from MHHS personnel about any individual surgeon’s patient outcomes,

including Gomez’s. Berman could not identify the source of the cardiologists’

“consensus” that Gomez had high mortalities.

Sam-Sin, who was still employed by MHHS in 2012, overheard a

conversation between Gibson and Macris in which Macris “basically insinuated

that he didn’t want to have Dr. Gomez as a surgeon, and that Dr. Gibson was the

one, usually, to clean up the messes after Dr. Gomez.” Sam-Sin was surprised to

hear Macris’s comment because, although she was aware of doctors who “were

responsible for some really bad outcomes,” she had “never heard anything like that

about Dr. Gomez” prior to Macris’s statement.

Portia Willis testified that MHHS later instituted a “hiatus” in its marketing

of Gomez. When Willis asked why, her boss told her, “I just left administration, I

just got out of a meeting, and I can’t tell you anything.” However, Willis’s boss

23 also “suggested” “something about surgical ability.” Willis testified that it was “a

big deal” to “question surgical abilities and [then state] that for the time being there

would be a complete pause” in marketing of that physician.

From his perspective on the peer review committee, Dr. Ngo testified that he

was “not aware of Memorial Hermann treating Dr. Gomez unfairly as far as the

letter of the law and the prints, but there’s also a lot of body language and tone[.]”

He was not personally aware of any employee of Memorial Hermann discussing

Gomez’s mortality rates or skills as a surgeon outside of the peer review committee

meetings, and, as far as he was aware, no Memorial Hermann employee spoke ill

of Gomez, but instead “actually spoke very highly of him.”

Nevertheless, Gomez testified that in early 2012, at a “general

surgery/cardiovascular combined committee meeting,” Alexander told Gomez,

“you can take your practice and move it on down the road.” Gomez testified that,

by this time, his practice was “[a] pretty damaged practice.”

In April 2012, Gomez resigned his privileges from MHHS and moved his

practice entirely to Methodist, where he had had privileges since 2009.

Dr. Todd Price, who was by that time acting as the chief of medicine at

MH/MC, testified regarding the end of the partnership between Gibson and Gomez

around that same time, stating that he was visiting the hospital when Gibson pulled

him aside and “told [him] of the destruction of the practice between him and Dr.

24 Gomez.” Price was told that Gibson and Gomez would no longer be working

together, that “they were going to be splitting up, that it would be because of

quality, and maybe other financial matters.” By “quality,” Price meant that he

understood that there were concerns about “quality of care” such as “the patient

outcomes, good versus bad.”

J. Gomez Filed the Instant Lawsuit

On September 17, 2012, Gomez and Gomez P.A. filed suit. Gomez filed

suit against MHHS alleging causes of action for business disparagement,

defamation, illegal restraint of trade, tortious interference with prospective

business relations, and conspiracy. He sought compensatory damages, statutory

treble damages, and exemplary damages.

The foregoing evidence concerning the alleged defamation based on the use

of the misleading individual surgeon mortality rates and the whisper campaign was

admitted at trial.

Gomez also introduced testimony from his damages expert Lara Carter, a

forensic accountant. Carter testified that she evaluated the financial impact of the

defamation and disparagement on Gomez’s practice, specifically the lost profits

associated with the decline in his cardiothoracic surgical activity. Carter testified

that she compared Gomez’s practice prior to the disparagement to his practice after

the disparagement and that she used Gomez’s records regarding the procedures that

25 he had performed both before and after the disparagement. She also testified that

she did not consider Gomez’s vein practice5 because it “can also be done by a

physician’s assistant or nurse practitioner” and because “it’s not the core of Dr.

Gomez’s practice or what he went to school to do.” Carter further stated that, in her

experience consulting with other medical practices, doctors frequently maintain

similar cosmetic “side” businesses, and, because such procedures can be performed

by nurse practitioners, doctors are “able to maintain those two businesses [the main

practice and the cosmetic side practice] simultaneously without the cosmetic

practice interfering with their primary practice.”

Carter testified that she also emphasized Gomez’s cardiothoracic surgery

practice in calculating the lost profits because Gomez told her that was “his

passion” and what “he wanted to do.” She also considered his “specific training in

robotic surgery.” She also considered various statements, tax returns, affidavits,

records of procedures performed at Methodist West, and other materials. Carter

researched market data in addition to the “source” materials provided by Gomez,

“to get an idea of what the market for cardiothoracic surgery was, what people

were saying in the industry about the surgery, about the number of surgeons out

5 In addition to his practice as a CV surgeon, Gomez had a separate practice that did various vein procedures dating back at least until 2005. Even after he left MH/MC and began practicing solely at Methodist West, Gomez continued to operate his separate vein practice. 26 there, about what the demand was, just to get an indication of what the overall

environment was.”

Carter testified that Gomez used Gomez P.A. for billing, accounting, and

liability purposes. She testified that she treated the “P.A. the same as [Gomez]

individually” because, as a solo practitioner, Gomez and Gomez P.A. were “more

or less . . . the same person.” She evaluated data from 2004 through 2016 and

“used a methodology called ‘lost profits’” to create “an estimate of what Dr.

Gomez’s practice would look like based on the information had he not had this

damage to his reputation.” She extrapolated what his practice would have looked

like “had it been able to continue from 2008 on,” considering “what it would have

earned, what the cost associated with earning those revenues would be” so that she

could calculate what his profits would have been. She then looked at what actually

happened. She subtracted the actual profits from the profits that she estimated

Gomez would have earned “but for” the defamation.

She based her calculations on the determination that Gomez could perform

258 surgeries a year “given the fact that a lot of the procedures would be robotic

which can be faster and he also has a broad range of surgical procedures that he

can perform.” Carter testified that Gomez had performed 288 surgeries in 2004,

and his partner had performed 260 that same year. In 2005–2007, Gomez was

training on the robotic equipment and had started his vein clinic, so he had a

27 decrease in procedures. Carter stated that between 2009 and 2010, “there was a

significant decline in his practice in the number of procedures he performed and

the related collections,” so 2010 was the year that she began calculating lost

profits. Regarding future lost profits, Carter calculated a range of damages

because, “given the context and given the fact that we don’t exactly know what the

lingering effects of the damage to Dr. Gomez’s reputation are and will be in the

future, I felt a range was appropriate.”

Carter testified that, based on the data she examined, she believed that

Gomez should have been able to achieve the 258 procedures a year if he had been

“allowed to grow his practice uninhibited.” She saw no indication that his practice

had begun to recover, stating, “In fact, there continues to be a decline.” She

testified to a range of damages based on a variety of scenarios projecting no

growth of his practice, a 4.6% rate of growth in the event that he would have been

able to recover some of his practice in the future, or a more conservative approach

in which she considered that he would not have been able to achieve the 258

surgeries a year had the defamation never occurred. She estimated that his damages

could range from approximately $2 million to $5.6 million.

Carter further testified that she considered “other probable causes” that

could have accounted for the lost profits. She considered general market

conditions and Gomez’s own actions, but she determined that “there was no

28 indication that there was another cause for [the] decline [in his practice] other than

the defamation and the damage to his reputation.” She stated that, when she

reviewed the data for the other surgeons at MHHS, Macris and Gibson, Gomez had

similar numbers of procedures until 2009, when the numbers began to diverge.

She testified that both Macris and Gibson had experienced an increase in their

practices since 2009, but Gomez’s practice had declined. Based on this data,

Carter concluded that there was no market-driven decline.

Carter addressed representations from MHHS that Gomez was making more

money now than he did before the defamation. She testified that, in addition to his

present income, Gomez should also have realized income from a thriving

cardiovascular surgery practice, which he had not been able to do because of the

defamation. She testified that the income Gomez made from his vein practice

would not have cut into his surgical practice because, if the surgical procedures

had been available, he could have turned over the vein procedures to a nurse

practitioner. Carter also testified that the vein practice is not driven by referrals

from the same source as the cardiovascular surgery, so the vein practice income

was not as susceptible to damage from the defamation and disparagement as

Gomez’s surgical practice was.

Other witnesses testified regarding damages as well. Former colleagues, like

Berman, testified that, at times during his last couple of years at MHHS and as a

29 result of the deterioration in his reputation, Gomez was “very stressed, very

frustrated, very angry and worried.” Berman testified that it was “very, very

upsetting” to watch something like that happen to a colleague and friend.

Pena, who had taken the concerns mentioned by Todd to her boss, testified

that, looking back, she “was disappointed in [herself] too, that I went to my boss to

block—basically, be careful about employing him [at Methodist].” She testified

that she saw how everything impacted Gomez, stating that “he was stressed and he

was disappointed and he was angry.” She testified:

So what I saw with Dr. Gomez was a person who I had seen over the course of years now who had developed a practice, developed a reputation, had built up a name for himself, had referral volume, he had, you know, marketing—marketing was putting dollars behind procedures that he was doing in general. And so what I—my personal opinion, what I saw, was a person who felt like they’re trying to take something from me that I have earned, and that was his name. That was what I heard.

Gomez’s wife, Jennifer Gomez, testified about his distress. She recounted

receiving a call from him in September 2009, when he first learned that MHHS

was considering options such as proctoring him or suspending his privileges. She

said that she “could just hear . . . the just sadness and shock in his voice,” and she

remembered him saying, “I don’t think I’m going to operate anymore.” She had

never received a phone call like that from him before. During the four months that

the peer review committee was reviewing his clinical data, she testified that Gomez

was “extremely stressed”:

30 Well, not sleeping or oversleeping, one or the other. Just, you know, not eating. He lost a lot of weight. . . . Pacing. He’s a pacer. I mean, pacing back and forth, back and forth. Withdrawn. And that was probably the hardest one for me. . . . [He was j]ust withdrawn. Just, like, vacant, somewhere else, just preoccupied. And, you know, his dad said the other day, and it really struck me. He never made this anyone else’s burden. He never was ugly. He never lashed out at me over it. He just stuffed it all inside and went and crawled in a hole. So, yeah, that was hard to see.

Jennifer Gomez also testified that she saw him on November 1, 2011, when

he realized that MHHS was still using the individual surgeon mortality data. She

testified that he was frustrated and “blown away.” She said that neither of them

could believe what was happening because it was “[s]hocking. Just utter shock.”

When asked how he moved on in light of “what had been done with his practice,”

she stated:

I mean, it’s a process, right? You know, that initial shock, with time, wore off a little bit. It’s kind of like, you know, when you have a big loss in your life and, you know, you try and establish a new normal, because that’s just the type of person he is. You know, he’s going to try and make the best of a bad situation. But a sadness. Just a little down and kind of going through the motions.

Jennifer testified that this was “[t]he polar opposite” of how he was before the

defamation. Before, “he was vivacious” and “going after it.” He felt “that he was

really doing what he was meant to do . . . and making his contribution.” She

testified:

I mean, he really loved his work. He loved his patients. And to not be doing that left like a big hole in him. That’s the best way to describe it like, like part of him had just been yanked out.

31 She stated that his vein practice has not “filled the hole”: “[H]e cares for his vein

patients, and, you know, he can help some of them alleviate their pain, and he cares

for them very much; but is it what cardiac surgery is to him? No. Not even close.”

Jennifer concluded:

I feel like some people know from a young age what they want to do. Some people—I—in my opinion, it’s like a gift. I’m not that person. I mean, I enjoy [my job], but I don’t know that it was like a gift. Do you know what I mean? I feel like [cardiac surgery] was his gift. I feel—I mean, [it] sounds kind of corny, but like God gave that to him, and he felt like that was his way to give back. He really did. And he—he was good at it. And, you know, just to have that inability to do that, something that you love, that you worked hard for, that you feel you’re a fit for. It’s—it’s hard to even still see him now. I mean, there are times when I honestly—there are just certain things that have broken my heart over the years, just little incidences that make me sad. . . . [Like,] in our neighborhood, he had just a great reputation and people would refer their family members. And I remember when we found out our neighbor across the street had something done and they were just kind of hush-hush about it, and, you know, I mean, it was obvious like, you know, they didn’t want his input. They obviously chose not to talk with us and pursue him, and it made me feel bad for him, because he knew but he never, like, said it to me, and I felt bad for him.

Jennifer testified that two years before trial, after the defamation had

occurred, Gomez had to sit for renewing his cardiothoracic board certification, and

he was “restudy[ing] everything,” “staying up until 1:00 and 2:00 in the middle of

the night, busting his butt,” but “he looked at me and goes, [‘It’s] kind of crazy, I

mean, here I am, and do you even really think I’m a cardiac surgeon anymore?[’]”

32 She testified that he was “a little apprehensive about seeing some of the guys from

his fellowship.”

The jury charge stated, in relevant part:

Answer the following questions with respect to Byron Auzenne’s alleged statement that “he had spoke[n] to CEO Keith Alexander and they had discussed it and they felt that the data needed to be shared, that we needed to be a transparent organization, that this was a safety issue and that means they can do what they will with the data and that he was going to show it and had shown it to cardiologists at cardiology meetings and other physicians and who referred to me so they can . . . make informed decisions when they refer patients.”

1. Did Memorial Hermann publish the statement?

Publish means intentionally to communicate the matter to a person other than Dr. Gomez who is capable of understanding its meaning.

Regarding Todd’s statement to Pena that “I heard bad quality, high mortality

rates, unnecessary surgeries,” the jury likewise was asked whether the statement

was published. There were also questions submitted to the jury asking whether the

same statements by Todd and Auzenne disparaged Gomez P.A.

Finally, the jury charge asked, “Do you find by clear and convincing

evidence that, at the time of the statements listed below Memorial Hermann knew

it was false as it related to Dr. Gomez, or made the statement with reckless

disregard as to its falsity?” The charge asked the jury to make this finding with

regard to both Todd’s statement that “I heard bad quality, high mortality rates,

unnecessary surgeries” and Auzenne’s statement made to Gomez following the

33 November 1 meeting that “he was going to show [the data] and had shown it to

cardiologists at cardiology meetings and [to] other physicians.”

The jury found in favor of Gomez on his defamation claims and Gomez

P.A.’s business disparagement claims. The jury rejected Gomez’s restraint-of-

trade claim. In response to the question asking whether the jury found clear and

convincing evidence that the Todd and Auzenne statements were made knowing

that they were false or with reckless disregard as to their falsity, the jury answered

“No” for the Todd statement and “Yes” for the Auzenne statement.

The jury likewise awarded Gomez and Gomez P.A. compensatory and

exemplary damages. Specifically, the jury awarded Gomez $304,500 for past

injury to his reputation and $700,000 for probable future injury to his reputation

arising out of the defamatory statement made by Todd. The jury also awarded

Gomez $456,750 for past injury to his reputation, $1,050,000 for probable future

injury to his reputation, and $365,000 for past mental anguish in connection with

the defamation by the Auzenne data. The jury likewise found malice in connection

with MHHS’s use of the Auzenne data and awarded exemplary damages of

$500,000.

The jury awarded Gomez P.A. $304,000 in past lost profits and $700,000 in

future lost profits for the disparagement related to Todd’s statement and the

whisper campaign. The jury awarded Gomez P.A. $456,750 in past lost profits and

34 $1,050,000 in future lost profits for the disparagement related to the Auzenne data.

The jury further made an affirmative finding of malice in connection with the

Auzenne data and awarded Gomez P.A. $500,000 in exemplary damages.

The jury indicated that the verdict was not unanimous. However, it also

provided an additional certification that the jury was unanimous in answering

questions regarding malice in connection with the Auzenne data and the awards for

The trial court rendered its final judgment based on the jury’s verdict. The

trial court also ruled, in the final judgment, that the defamatory statements were not

covered by qualified privilege. It awarded damages consistent with the jury’s

verdict plus pre- and post-judgment interest and costs.

Analysis

A. Publication

In its first issue on appeal, MHHS argues that the allegedly defamatory

statement by Auzenne as identified in the jury charge was not published to a third

party. The jury charge set out this statement as follows:

[Auzenne] had spoke[n] to CEO Keith Alexander and they had discussed it and they felt that the data needed to be shared, that we needed to be a transparent organization, that this was a safety issue and that means they can do what they will with the data and that he was going to show it and had shown it to cardiologists at cardiology meetings and other physicians and who referred to me so they can . . . make informed decisions when they refer patients.

35 The charge asked, “Did Memorial Hermann publish the statement?” It defined

“publish” as meaning, “intentionally to communicate the matter to a person other

than Dr. Gomez who is capable of understanding its meaning.”

The statement set out in the charge quotes Gomez’s testimony regarding his

conversation with Auzenne. During deliberations, the jury asked, with regard to

this question, “[D]oes the court want to know if the exact statement as quoted was

published or if the data referred to in the statement is being published?” The trial

court responded, “The jury is instructed to answer Questions2b(1) and 3b(1) to the

best of the jury’s ability as the jury understands the questions.” The jury found

that the statement was published.

1. Standard of Review

This issue is essentially a no-evidence point, as MHHS asserts that the

statement identified in the jury charge was not published as a matter of law.

Neither party challenges the adequacy of the charge in this case, and the statements

of law contained in the charge are generally correct; thus, the sufficiency of the

evidence is measured against the charge actually submitted, not some other law left

unidentified in the charge. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

We review no-evidence points by considering the evidence in the light most

favorable to the verdict, disregarding evidence contrary to the verdict unless a

reasonable jury could not. Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018);

36 City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). “More than a

scintilla of evidence exists when reasonable and fair-minded people could reach

different conclusions based on the evidence.” Anderson, 550 S.W.3d at 616 (citing

Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014)). It is the jury’s role to

evaluate the credibility of the witnesses and reconcile any inconsistencies or

conflicts in the evidence, and the jury may “believe all or any part of the testimony

of any witness and disregard all or any part of the testimony of any witness.” Id.

(quoting Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 774–75 (Tex.

2003)); City of Keller, 168 S.W.3d at 819–20. “We must uphold the jury verdict if

any reasonable version of the evidence supports it.” Anderson, 550 S.W.3d at 616.

“Actionable defamation requires . . . publication of a false statement of fact

to a third party,” in addition to other elements. Id. at 617–18 (setting out elements

of defamation); see also Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d

167, 170 (Tex. 2003) (“To prevail on a business disparagement claim, a plaintiff

must establish that (1) the defendant published false and disparaging information

about it, (2) with malice, (3) without privilege, (4) that resulted in special damages

to the plaintiff.”). “‘Publication’ occurs if the defamatory statements are

communicated orally, in writing, or in print to some third person who is ‘capable

of understanding their defamatory import and in such a way that the third person

did so understand.’” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex.

37 2017) (quoting Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—

Dallas 2003, no pet.)).

“[A]n allegedly defamatory publication should be construed as a whole in

light of the surrounding circumstances based upon how a person of ordinary

intelligence would perceive it.” Turner v. KTRK Television, Inc., 38 S.W.3d 103,

114 (Tex. 2000); see also Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (“It

is well settled that ‘the meaning of a publication, and thus whether it is false and

defamatory, depends on a reasonable person’s perception of the entirety of a

publication and not merely on individual statements.’”). “Because a publication's

meaning depends on its effect on an ordinary person’s perception, courts have held

that under Texas law a publication can convey a false and defamatory meaning by

omitting or juxtaposing facts, even though all the story's individual statements

considered in isolation were literally true or non-defamatory.” Turner, 38 S.W.3d

at 114.

2. Analysis

MHHS argues that the defamatory statement as set out in the charge was not

published to a third party. It argues that, because publication to a third party is an

essential element of Gomez’s defamation and business disparagement claims, and

the statement identified in the charge was not published as a matter of law,

Gomez’s defamation and business disparagement claims as they relate to this

38 statement also fail. In making this argument, MHHS asserts that the statement in

the charge must be read narrowly and that “[t]he charge cannot be construed to ask

the jury about unspecified statements about undefined ‘data’ to unidentified third

parties.” Rather, MHHS asserts that the “literal language of the jury charge limits

the scope of review,” and, by its own language, the statement identified in the

charge was made by Auzenne to Gomez and not to a third party.

The jury charge here identified the alleged defamatory statements made by

Auzenne by quoting a portion of Gomez’s testimony. Gomez testified that after

Ngo and the peer review committee reviewed his surgical mortality rates on a case-

by-case basis, determined that there were no quality of care concerns with regard

to Gomez’s performance as a surgeon, and recommended that MHHS quit using

the individual surgeon mortality data and instead conform its data collection and

review to those measures set out by the Society of Thoracic Surgeons, he thought

his issues with the misleading data were resolved. On November 1, 2011, the

Cardiovascular and Thoracic Surgery Subcommittee held its quarterly meeting and

presented a report on the STS 2010 Database Review.

Gomez testified that there were about thirty to forty people present at the

November 1, 2011 meeting, including doctors, administrators, and nurse

administrators. He testified that Dr. Macris again used a 2010 version of the

individual surgeon mortality data that identified individual surgeons using a code.

39 Gomez testified that, at the beginning of the presentation, each surgeon received an

envelope “to let them know which surgeon they were” in the data shared during the

presentation. He testified that, after the presentation was over, “we had a

discussion about this lie. I got up and said that the data wasn’t accurate[.]”

Among other issues, Gomez testified at trial that the data attributed to him in this

presentation included a surgical death that he had not been responsible for, and

Gomez believed, in any event, that the data was not supposed to be used any

Gomez testified that when he objected that the data “wasn’t statistically

accurate or valid,” Dr. Macris “looked at me and made a gesture to me and said,

‘Only the surgeons that look bad need . . . to be concerned.’” Gomez stated that

“made it pretty clear that I was one of the red flagged [surgeons]” and that

“everybody at the committee knew that I was one of the red-flag surgeons.”

When Gomez later confronted Auzenne to question why the misleading

individual surgeon mortality data was still being used, Gomez testified that

Auzenne told him:

that [Auzenne] had spoke[n] to CEO Keith Alexander and they had discussed it and they felt that the data needed to be shared, that we needed to be a transparent organization, that this was a safety issue, a safety issue, and that means they can do what they will with the data and that he was going to show it and had shown it to cardiologists at cardiology meetings and other physicians who referred to me so they can make informed decisions when they refer patients.

40 Gomez testified that he understood Auzenne to be saying that he had been showing

the misleading data to Gomez’s referring doctors since 2010.

The jury charge specifically referenced this testimony, including Auzenne’s

admission to Gomez that he had provided the data “to cardiologists at cardiology

meetings and other physicians and who referred to [Gomez].” Gomez presented

evidence that the data was published by being used at several meetings, including

the one on November 1, 2011, at which approximately thirty to forty health care

professionals were present, and that Macris made it clear that Gomez was one of

the “red-flagged” surgeons.

Several doctors and other medical professionals testified that they were

aware of the individual surgeon mortality data and that they knew that Gomez was

identified by that data as a surgeon with a high mortality rate. For example,

Gibson, Gomez’s then-partner, knew as far back as 2009 that Gomez’s individual

mortality data numbers were a cause for concern at MHHS and said as much to

Gomez. Doctors Ngo and Macris also were aware that Gomez was identified by

the data as a problem surgeon. Gomez testified that Auzenne acknowledged that

he “was going to [the data] it and had shown it to cardiologists at cardiology

meetings and other physicians and who referred to me so they can . . . make

informed decisions when they refer patients.” Berman likewise testified that the

cardiologists came to believe that Gomez had high mortality rates. Finally, the

41 record contains copies of the slide shows and reports that used the individual

mortality data.

Furthermore, the doctors and other personnel to whom this data was

disseminated understood its defamatory nature. Ngo and Berman both testified

that evidence of a poor mortality rate would affect referrals and a doctor’s

reputation. Berman testified that he believed that Gomez’s mortality rate did

actually impact other cardiologists’ opinion of him. Data experts like Rachel

Dokholyan, a project leader for the STS databased, and Dr. Baron Hamman, a

cardiac surgeon and expert on cardiovascular quality metrics, testified that these

statistics were important and that doctors used the data to make decisions about

their patient’s care. Gomez himself testified that he objected to the improper data,

and Macris made it clear that Gomez was one of the “red-flagged” surgeons.

Viewed in the light most favorable to the jury’s verdict, we conclude that

there was evidence that MHHS, through Auzenne, published the individual

surgeon mortality data by presenting it to other doctors, who were capable of

understanding its defamatory import and who did in fact understand the data in that

way. See Anderson, 550 S.W.3d at 616; see also Rincones, 520 S.W.3d at 579

(“‘Publication’ occurs if the defamatory statements are communicated orally, in

writing, or in print to some third person who is ‘capable of understanding their

defamatory import and in such a way that the third person did so understand.’”).

42 MHHS further argues that defamation requires proof of a specific statement

and interpreting the charge in a non-literal way would be “unfair.” However,

“[w]e are to read jury instructions like jurors do—with common sense.” See Nip v.

Checkpoint Sys., Inc., 154 S.W.3d 767, 772 n.3 (Tex. App.—Houston [14th Dist.]

2004, no pet.); see also City of Brenham v. Honerkamp, 950 S.W.2d 760, 764

(Tex. App.—Austin 1997, pet. denied) (holding that reading jury questions “in a

common-sense manner” supported conclusion that jury question “fairly placed the

liability issue before the jury” and noting that “[t]he trial court has broad discretion

in submitting jury questions, subject only to the requirement that the submitted

questions fairly place the disputed issues before the jury”); Broughton v. Humble

Oil & Ref. Co., 105 S.W.2d 480, 485 (Tex. App.—El Paso 1937, writ ref’d)

(“Theoretical perfection of expression as to each isolated sentence is not the end

sought, else there would seldom be found unobjectionable instructions. Natural,

not strained, constructions should prevail.”). “If possible, we must interpret the

jury’s findings to avoid a ‘nonsensical result’ and in a manner that upholds the

judgment.” Nip, 154 S.W.3d at 772 n.3 (quoting Otis Spunkmeyer, Inc. v. Blakely,

30 S.W.3d 678, 685–86 (Tex. App.—Dallas 2000, no pet.)); see also Jackson v.

U.S. Fidelity & Guar. Co., 689 S.W.2d 408, 411–12 (Tex. 1985) (noting, when

case involved determination of fact, rather than determination of law, that “if the

43 jury findings are ambiguous or unclear, the appellate courts must try to interpret

the findings so as to uphold the judgment”).

Gomez identified specific defamatory statements—i.e., Auzenne’s use of the

individual surgeon mortality data. Nothing in the record indicates that the crux of

Gomez’s complaint was a statement that Auzenne made to him. Rather, the entire

case revolved around Auzenne’s use of the individual surgeon mortality data, even

after the Surgical Peer Review Committee and others recommended against its use.

The use of this data was referenced in the jury charge, and, as we discussed above,

the record contains evidence that the data was published to third parties.

We overrule MHHS’s first issue.

B. Causation of Damages

In its second issue, MHHS asserts that Gomez failed to establish causation

with respect to his claims of defamation and business disparagement arising out of

Todd’s alleged statement to Methodist West’s physician liaison, Pena, regarding

Gomez: “I heard bad quality, high mortality rates, unnecessary surgeries.”

In its fourth issue, MHHS argues that there was no evidence of causation

generally, asserting that there was no evidence of any loss of referrals caused by

defamation, no evidence that Gomez’s reputation was harmed by defamation, and

no evidence to support an award of past mental anguish.

We consider these issues together.

44 1. Standard of Review

These are both no-evidence complaints that we review by considering the

evidence in the light most favorable to the verdict, disregarding evidence contrary

to the verdict unless a reasonable jury could not. Anderson, 550 S.W.3d at 616;

City of Keller, 168 S.W.3d at 822, 827.

“Actionable defamation requires (1) publication of a false statement of

fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the

requisite degree of fault, and (4) that proximately caused damages.” Anderson,

550 S.W.3d at 617–18. Proximate cause encompasses both foreseeability and

cause in fact. Id.; Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex.

2010). “A defendant’s action is the cause in fact of damages ‘if it was a substantial

factor in causing the injury and without which the injury would not have

occurred.’” Anderson, 550 S.W.3d at 618.

“General damages include non-economic losses, such as mental anguish and

loss of reputation,” while special damages represent specific economic losses. Id.

(citing In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015)). “Non-economic damages

offer a pecuniary remedy for non-pecuniary harm and are not amenable to

calculation with ‘precise mathematical precision.’” Id. (quoting Brady v.

Klentzman, 515 S.W.3d 878, 887 (Tex. 2017), and citing Waste Mgmt. of Tex., Inc.

v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014)). Thus, the

45 jury has “latitude” in determining a non-economic damages award, but it is not

granted “carte blanche” in deciding the matter; rather, “the jury must award ‘an

amount that a reasonable person could possibly estimate as fair compensation.’” Id.

(quoting Bentley, 94 S.W.3d at 605, and Waste Mgmt., 434 S.W.3d at 153).

Regarding evidence of lost profits, the supreme court has held:

The rule concerning adequate evidence of lost profit damages is well established: Recovery for lost profits does not require that the loss be susceptible of exact calculation. However, the injured party must do more than show that they suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. What constitutes reasonably certain evidence of lost profits is a fact intensive determination. As a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates.

ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010)

(quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992)).

Regarding mental anguish damages, the record must contain “direct

evidence of the nature, duration, and severity of [the plaintiff’s] mental anguish,

thus establishing a substantial disruption in the plaintiff[’s] daily routine,” or

“evidence of a high degree of mental pain and distress that is more than mere

worry, anxiety, vexation, embarrassment, or anger.” Anderson, 550 S.W.3d at 618–

19. However, “[g]eneralized, conclusory descriptions of how an event affected a

46 person are insufficient evidence on which to base mental anguish damages.” Id. at

619.

2. Causation of Damages Arising from Todd’s Statement

In its second issue, MHHS argues that Gomez has “absolutely no proof that

[Todd’s] statement links causally to any award of damages” and that “[t]here is no

evidence that this statement connects to any reputational harm or lost profits from

fewer referrals.” This assertion misrepresents the nature of the evidence presented

at trial.

MHHS argues that Pena never testified that Todd’s statements affected her

opinion of Gomez, and it construes Pena’s testimony as stating that she merely

reported the concerns to the CEO of Methodist West and recommended extra

vetting of Gomez. This ignores Pena’s testimony that she “absolutely did believe”

Todd’s statements. Pena testified that she recommended, “I would be careful to

vet him because things like that don’t just come out of nowhere.” Pena also

testified that she believed the things Todd told her because “it was out there

already. It’s hard to explain. It was in the ether, it was out there. So in hearing

that, I absolutely did believe it. And as I said, because I witnessed it, you know, I

witnessed that happening and heard it from multiple physicians.” The fact that

Methodist West did eventually hire Gomez does not mean that his reputation

suffered no harm from the defamatory statements and the resulting extended

47 vetting process, as further evidenced by the fact that, at Methodist West, Gomez

performs fewer cardiovascular surgeries—surgeries for which he had trained and

which he had developed a highly marketable technique prior to the defamatory

statements made about him.

MHHS also relies on Pena’s testimony and the testimony of other doctors

indicating that Gomez had a good reputation and had been successful at Methodist,

arguing that there was no evidence that anyone believed Todd’s representations or

thought less of Gomez and, thus, there was no causation of harm to Gomez’s

reputation. Evidence that some people still had a good opinion of Gomez, however,

does not support a conclusion that he suffered no harm to his reputation or

business. MHHS’s representation of the evidence ignores Pena’s testimony that

she believed the representations that Todd made. It also ignores the testimony of

witnesses like Dr. Berman and others that the “whisper campaign” was real and

that it impacted Gomez’s reputation and business.

Berman testified that the gist of the statements about Gomez was that “he

had excessive mortality, which would imply he’s not a good surgeon.” Berman

also testified that the “end result” was that the patients Gomez used to receive from

Berman now went to see either Macris or Gibson. Berman also testified that other

cardiologists believed that Gomez was a bad surgeon and that the mortality data

affected their decisions to refer to Gomez. Sam-Sin testified that she overheard

48 Macris make disparaging remarks to Gibson about Gibson having to “clean up”

after Gomez. Willis testified that the hospital decided to withdraw marketing

support from Gomez and that her boss suggested that this was because of concerns

over his “quality of care,” which was “a big deal.” Carter, Gomez’s damages

expert, testified that Gomez’s CV surgery practice never approached the levels it

had reached before the publication of the defamatory statements and that most of

his practice remained in other thoracic surgeries and vein procedures. This

constitutes evidence that some people did believe the false information about

Gomez.

MHHS also argues that Gomez presented no evidence supporting the jury’s

award of lost profit damages. It asserts that there was no evidence that Gomez lost

referrals or business because of Todd’s statement to Pena and specifically noted

that Pena’s role “was to recruit and hire physicians—not to interface with patients

and make recommendations on surgeons.” MHHS argues that, because Methodist

ultimately hired Gomez and he continued to receive some referrals from other

doctors, there is no evidence that Todd’s statement caused Gomez to incur any lost

profits. MHHS’s argument ignores Gomez’s testimony that he did not intend to

quit practicing at MH/MC but that he eventually felt that he had no choice to resign

his privileges there. It also ignores the change in the nature of Gomez’s practice

after the false information was published. Gomez and Carter both testified that,

49 after the defamation, Gomez was performing significantly fewer cardiovascular

surgeries and that the nature of many of the surgeries and procedures he performed

required less skill than the surgeries he was performing before the defamation was

published. Thus, there was evidence that any losses attributed to the fact that he

only worked at Methodist could have been caused by the defamation forcing him

to leave MH/MC.

MHHS also ignores the entire testimony of Carter, who provided detailed

facts regarding the nature of Gomez’s practice both before and after the alleged

defamation. Furthermore, Pena herself acknowledged that, following the

defamation, she observed Gomez—who had previously been a sought after,

respected surgeon with good “referral volume”—struggle to defend his good name

and his surgical practice.

Specifically, Carter testified that Gomez suffered a total of approximately

$5.6 million dollars in lost profits. She supported these conclusions with data

regarding Gomez’s surgical referrals and number of surgeries performed both

before and after the defamation. The jury awarded Gomez $304,000 in past lost

profits and $700,000 in future lost profits attributable to Todd’s statement

representing circulating rumors that Gomez was a “bad quality” surgeon with

“high mortality rates, [and] unnecessary surgeries.” Thus, the apportioning of

$1,004,000 in damages resulting from Todd’s statement out of the total amount of

50 $5.6 million in damages testified to by Carter is not unreasonable. See Swinnea,

318 S.W.3d at 876 (holding that recovery for lost profits does not require “exact

calculation” but instead “must be shown by competent evidence with reasonable

certainty”; this is “a fact intensive determination” and must be “based on objective

facts, figures, or data from which the amount of lost profits can be ascertained”).

We overrule MHHS’s second issue.

3. Causation of Damages Arising from Auzenne’s Data

In its fourth issue, MHHS argues that “[t]here is no evidence of causation

generally.” MHHS argues that Gomez’s defamation and business disparagement

claims based on Auzenne’s statement “fail for lack of evidence that the unspecified

statements about data actually caused any harm.” MHHS asserts that Gomez

“never actually connected Gomez’s lower surgical numbers to any particular

instance of defamation.” See Brady, 515 S.W.3d at 887 (“Losing a job or business

opportunities . . . is not evidence of loss of reputation unless the evidence connects

it to the defamation.”). MHHS essentially argues that because there were multiple

possible reasons for Gomez to lose business, the evidence did not connect the loss

to the defamation. MHHS argues that Gomez’s “loss of referrals” theory of

recovery is “wildly speculative,” and it argues that no witnesses testified that they

had stopped or reduced their referrals to Gomez because of any concerns about his

reputation.

51 However, Carter presented evidence of the decline in Gomez’s referrals and

cardiovascular surgeries and assigned specific amounts of damages to that decline.

Gomez himself and others testified regarding the change in his reputation—that he

went from being highly respected to having numerous colleagues who thought he

was effectively a “bad” surgeon because of his mortality rate and ceased referring

patients to him. Carter also stated that there was a noticeable decrease in volume

in Gomez’s practice between 2009 and 2010, when Auzenne first used the

individual surgeon mortality data, that the lower volume continued for years, and

that Gomez’s surgical practice has never really recovered.

MHHS likewise argues that there is “no evidence that unspecified statements

about data connect to any harmed reputation,” noting that “the witnesses at trial

universally agreed that Gomez’s reputation is good” and that some doctors still

refer patients to Gomez. See id. (“[E]vidence of loss of reputation should be more

than theoretical. Showing that the community was aware of and discussed the

defamatory statements is not enough; there must be evidence that people actually

believed the statements and the plaintiff’s reputation was actually affected.”)

(internal citation omitted). Again, as set out above, this misconstrues the evidence.

Some doctors still believed that Gomez had a good reputation and was a good

cardiothoracic surgeon, but the jury was entitled to credit the numerous witnesses

who testified that other doctors came to believe that Gomez was a bad surgeon

52 with high mortality rates. The jury had “latitude” in awarding damages arising out

of the harm to Gomez’s reputation among his fellow health professionals. See

Anderson, 550 S.W.3d at 618.

MHHS also argues that there is no evidence supporting the jury’s award for

past mental anguish damages arising from the Auzenne statement. “Generally, an

award of mental anguish damages must be supported by direct evidence that the

nature, duration and severity of mental anguish was sufficient to cause, and caused,

either a substantial disruption in the plaintiff’s daily routine or a high degree of

mental pain and distress.” Brady, 515 S.W.3d at 891.

Here, many of Gomez’s professional friends and colleagues noted the

profound change in Gomez’s demeanor following the defamatory statements.

Berman testified that, at times during his last couple of years at MHHS and as a

result of the deterioration in his reputation, Gomez was “very stressed, very

frustrated, very angry and worried.” Berman testified that it was “very, very

upsetting” to watch something like that happen to a colleague and friend.

Pena testified that she saw how everything impacted Gomez, stating that “he

was stressed and he was disappointed and he was angry.” She testified:

So what I saw with Dr. Gomez was a person who I had seen over the course of years now who had developed a practice, developed a reputation, had built up a name for himself, had referral volume, he had, you know, marketing—marketing was putting dollars behind procedures that he was doing in general. And so what I—my personal opinion, what I saw, was a person who felt like they’re trying to take 53 something from me that I have earned, and that was his name. That was what I heard.

Significantly, Jennifer Gomez, Gomez’s wife, testified that her husband was

“extremely stressed” by the defamation, that it was an “utter shock,” and that it

was “exhaustive” for the “entire family.” She testified that Gomez was “not

sleeping or oversleeping, one or the other.” He was “not eating” and “lost a ton of

weight.” She testified that he paced and was withdrawn and “vacant.” Jennifer

stated that Gomez “just stuffed in all inside and went and crawled in a hole.” She

equated his losing his reputation as a surgeon and losing the ability to work as a

surgeon to “a big loss,” causing him to “establish a new normal.”

Jennifer testified that Gomez created the “new normal” but was “kind of

going through the motions,” which was “[t]he polar opposite” of how he was

before the defamation. Before, “he was vivacious” and “going after it.” He felt

“that he was really doing what he was meant to do . . . and making his

contribution.” She testified that Gomez’s career as a cardiac surgeon was like a

gift from God and having it taken away left a hole:

I mean, he really loved his work. He loved his patients. And to not be doing that left like a big hole in him. That’s the best way to describe it like, like part of him had just been yanked out.

She testified that the entire process caused him to question whether he was “even

really . . . a cardiac surgeon anymore” and left Gomez feeling “like he has this

huge scarlet letter on him.”

54 This testimony constitutes direct evidence that the nature, duration and

severity of mental anguish was sufficient to cause, and caused, either a substantial

disruption in Gomez’s daily routine or a high degree of mental pain and distress.

See Brady, 515 S.W.3d at 891. Gomez provided evidence of more than “mere

worry, anxiety, vexation, embarrassment, or anger.” See Anderson, 550 S.W.3d at

619. The stress and mental pain from the defamation caused sleep disturbances

and weight loss. It effected a material change in his outlook and “left a hole” in his

life.

In Bentley v. Bunton, the plaintiff spent time worrying at home and was

distressed about the impact the defamatory statements had on him and his family;

his wife testified that he lost sleep and would never be the same; and his demeanor

changed. 94 S.W.3d at 606–07 (concluding that plaintiff presented legally

sufficient evidence of mental anguish but remanding for reconsideration of

“excessive” multi-million dollar award); see also Anderson, 550 S.W.3d at 619

(stating that court eventually upheld suggested remittitur in Bentley “that left

$150,000 in mental anguish damages on the table”).6 Here, the evidence indicated

that Gomez likewise experienced a significant and extended change in his

personality. He worried that he could not provide for his family, he withdrew and

6 MHHS does not appear to argue that the mental anguish award was excessive, merely that there was no evidence to support it. However, we note that the mental anguish award here was $365,000, which is considerably less that the multi- million dollar mental anguish award the supreme court found excessive in Bentley. 55 “crawled into a hole,” he felt like he was marked with “a huge scarlet letter,” he

had sleep disturbances and lost weight due to the stress. He moved on to a “new

normal,” but the loss of his reputation left a hole that has not been filled by other

professional endeavors. See also Anderson, 550 S.W.3d at 620 (upholding mental

anguish award based on testimony that accusation “basically destroyed” plaintiff,

causing a material change in personality and trouble sleeping and eating; that, for

plaintiff, it was “a two-year nightmare trying to get [his] life back and [his]

reputation back”; and that plaintiff “[w]orried about [his] 30-year career that had

been slandered all over town”).

Thus, we conclude that there was sufficient evidence of mental anguish

damages caused by MHHS’s use of the Auzenne data.

We overrule MHHS’s fourth issue.

C. Qualified Privilege

In its third issue, MHHS argues, in the alternative, that both the Auzenne

statement and the Todd statement were protected by qualified privilege.

1. Standard of Review and Relevant Law

There is a qualified privilege against defamation liability when a

“communication is made in good faith and the author, the recipient or a third

person . . . has an interest that is sufficiently affected by the communication.”

Burbage, 447 S.W.3d at 254 (quoting Cain v. Hearst Corp., 878 S.W.2d 577, 582

56 (Tex. 1994)); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.

1995). This privilege is an affirmative defense. See Burbage, 447 S.W.3d at 254.

Thus the defendant bears the burden of proving privileged publication unless the

plaintiff’s petition affirmatively demonstrates privilege. Id. (citing Denton Pub.

Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970)). If the defendant establishes the

privilege, the plaintiff may nevertheless defeat the privilege by proving that the

defendant made the statements with actual malice. Id. (citing Dun & Bradstreet,

Inc. v. O’Neil, 456 S.W.2d 896, 898 (Tex. 1970)).

The parties stipulated that the question of whether these communications

were covered by privilege is a question of law. See id. (“Qualified privilege

presents a question of law when the statements at issue employ unambiguous

language and where the facts and circumstances of publication are undisputed.”).

However, Gomez argues that because the jury found malice, he has defeated

MHHS’s claim of privilege.

“Actual malice, in the defamation context, means ‘the making of a statement

with knowledge that it is false, or with reckless disregard of whether it is true.’” Id.

(quoting Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex. 1994)

(per curiam)). In considering whether a defendant acted with actual malice, the

focus is on the defendant’s attitude toward the truth, not his attitude toward the

plaintiff. Greer v. Abraham, 489 S.W.3d 440, 444 (Tex. 2016). “[P]roof of bad

57 motive or ill will is not enough.” Brady, 515 S.W.3d at 883; Hagler, 884 S.W.2d at

771–72 (“Actual malice in the defamation context does not include ill will, spite or

evil motive, but rather requires sufficient evidence to permit the conclusion that the

defendant in fact entertained serious doubts as to the truth of his publication.”)

(internal quotation omitted).

To establish the qualified privilege, MHHS had to prove, among other

things, that the statements were made in good faith. Furthermore, Gomez could

defeat application of the privilege by establishing actual malice. We conclude that

the trial court properly ruled that the privilege did not apply to either Todd’s

statement or the Auzenne data.

2. Todd Statement

MHHS argues that the Todd statement is privileged because it was made

“between two interested parties for the purpose of cautioning Methodist that a

surgeon it was recruiting was the subject of concern involving his reputation and

skills,” and it asserts that there is no evidence about Todd’s state of mind when she

made the call to Pena. MHHS construe’s Pena’s testimony on the matter as

indicating that Todd made the call in good faith. However, this account is not

conclusively established by the evidence. Pena was asked:

Q. [D]id you question [Todd] about how in the world [she] as a marketing person [would] be sharing this with anybody?

58 A. We knew each other personally and, you know, trying to be succinct about it, Jenn just had her hands into everything. She’s just a person in the know. And I did ask her but there was a line that she would draw.

Q. Well, what’s the problem with saying there’s something really bad about this doctor—mortality rate, quality of care, doing bad things—but I’m not going to tell you the whole details? What’s that tell you?

A. It left me concerned that I knew at that time Dr. Gomez was talking to us. . . .

Pena testified that Todd “knew all the directors and the CEOs and she knew a

multitude of physicians and so she always, you know, had information that other

people wouldn’t normally have.”

Thus, this evidence supports a conclusion that Todd made the statement to

Pena in the capacity of their personal relationships and that Todd was conveying

information that was gossip and innuendo gathered around the office, rather than

information that Todd had an obligation to present to a competing hospital as part

of her job duties. This does not, as MHHS argues, establish as a matter of law that

Todd acted in good faith in disseminating this information.

MHHS also argues that, because the jury found no malice with regard to

Todd’s statement, there was no evidence of malice at all. This disregards the

nature of the jury’s finding. Question Seven asked the jury whether there was

“clear and convincing” evidence that the Todd and Auzenne statements were made

with MHHS’s knowing of their falsity or acting in reckless disregard for whether

59 the statements were true. Although the jury answered “no” as to the Todd

statement, the fact that the jury did not find “clear and convincing” evidence of

MHHS’s knowledge does not compel a conclusion that there was no evidence of

malice on Todd’s part with regard to her statement. The question of malice arising

out of the Todd statement was not otherwise submitted to the jury.

Finally, Gomez’s obligation to rebut the privilege with evidence of actual

malice arises only if MHHS mets its burden of establishing good faith. See

Burbage, 447 S.W.3d at 254. Here, we cannot say that MHHS met that burden.

The nature of Todd’s statement—passing on rumors that arose based on MHHS’s

knowing misuse of misleading data—and Pena’s testimony—asserting that Todd

communicated the rumors to her because they knew one another personally and

“[Todd] just had her hands into everything” and was “a person in the know” who

“always . . . had information that other people wouldn’t normally have”—indicates

that the statement was not made in good faith.

3. Auzenne Data

MHHS further argues that the Auzenne statement is likewise privileged and

that Gomez offered no evidence of actual malice that would defeat the privilege.

However, the jury made several findings of actual malice regarding MHHS’s use

of the Auzenne data, and, contrary to MHHS’s argument, those findings are

supported by legally sufficient evidence.

60 MHHS argues that Auzenne used the data to improve transparency and to try

to help treat patients with a higher quality of care. However, MHHS’s arguments

on this issue do not take into account the evidence that at least some of the data

Auzenne used was statistically unsound and not the type of data that was reported

by STS, the acknowledged authority on the issue of cardiovascular surgical

statistics. Gomez testified that, even after the peer-review process was completed

in 2010 and the committee found no concerns regarding his performance, Auzenne

continued to use unsound data. This is evidence that Auzenne and MHHS both

knew, or should have known, not to use the objectionable data. Furthermore,

Gomez testified that the data in the November 1, 2011 meeting attributed a

mortality to him that he was not responsible for, and because of the small sample

size, this misattribution had a profound effect on his mortality data, pushing him to

the “red flag” zone. Thus, there is evidence that both Auzenne and MHHS acted

with, at the least, reckless disregard for the truth. See id. (“Actual malice, in the

defamation context, means ‘the making of a statement with knowledge that it is

false, or with reckless disregard of whether it is true.’”).

Because we conclude that MHHS did not establish that it acted in good faith,

and, in fact, Gomez presented evidence of actual malice, we conclude that the trial

court did not err in holding that the qualified privilege did not apply in this case.

We overrule MHHS’s third issue.

61 D. Sufficiency of Evidence of Damages Awards

In its fifth issue, MHHS argues that the evidence is legally insufficient to

support the damages award for lost profits. In its sixth issue, MHHS argues that,

“[a]t a minimum, the judgment should be reformed” because it awarded essentially

identical damages to both Gomez and Gomez P.A., resulting in a double recovery.

“Actual or compensatory damages are intended to compensate a plaintiff for

the injury she incurred and include general damages (which are non-economic

damages such as for loss of reputation or mental anguish) and special damages

(which are economic damages such as for lost income).” Hancock v. Variyam, 400

S.W.3d 59, 65 (Tex. 2013).

MHHS asserts that Carter failed to rule out plausible alternative causes for

the decline in Gomez’s cardiovascular surgery business. This does not accurately

reflect Carter’s testimony. Carter testified that she did rule out other plausible

alternative causes for the decline in Gomez’s cardiovascular surgeries, including

any “market-driven” factors, considerations regarding Gomez’s personal life, and

his involvement with the vein clinic. She provided specific reasons for rejecting

these other possible causes. For example, Carter’s conclusions were based in part

on data showing that Gomez’s fellow surgeons Macris and Gibson experienced

growth in their practices during the same time that he experienced a decline.

Carter explained that she believed that Gomez could have continued to run the vein

62 clinic and maintain a full surgical practice. Gomez’s own testimony was that he

would have preferred to spend more time doing cardiovascular surgery but did not

have the referrals to make a full practice, so he supplemented with his vein

practice. Carter opined that the losses to Gomez’s business could not be explained

except as the result of the defamation and business disparagement. The jury was

entitled to credit her testimony on this matter.

MHHS also raises some concerns regarding Carter’s methodologies and

data. However, the trial court considered factors relevant to Carter’s reliability as

an expert witness and ruled that she was qualified to testify. Her methodologies

comport with established legal principles involved in calculating lost profits, and

she presented a range of projections to the jury, along with supporting data. She

testified that she established the lost revenue with evidence from the relevant time

period showing a decline in Gomez’s practice based on Gomez’s own testimony

and representations about his business. She also looked at comparable practices in

the area and general market conditions. See Swinnea, 318 S.W.3d at 876–77

(setting out methodology for calculating lost profits).

MHHS also complains that Carter’s projection that Gomez could perform

258 surgeries a year was insupportable. However, Gomez had performed more

than 258 surgeries in one year prior to the defamation. Carter testified that other

surgeons performed that many surgeries, and she believed that, but for the

63 defamation, Gomez could have as well, especially in light of his experience with

robotic surgeries. Finally, Carter provided estimates of lost profits based on

different predicted volumes of surgeries, and the jury was entitled to credit the

evidence supporting any of those representations regarding Gomez P.A.’s future

capacity had it not been disparaged by MHHS. MHHS is essentially challenging

the conclusions that Carter drew from the evidence. These concerns go to the

weight of the evidence and fall with the province of the jury to resolve. See

Anderson, 550 S.W.3d at 616 (holding that it is jury’s role to evaluate wintesses’

credibility reconcile inconsistencies or conflicts in evidence).

We overrule MHHS’s fifth issue.

Regarding its argument that the jury’s award of damages here to both

Gomez and Gomez P.A. is essentially a double recovery, MHHS asserts, “[T]he

evidence and arguments treated Plaintiffs as identical and treated lost profits and

reputational harm as identical. Because there is no distinction between the

evidence supporting the separate awards, the judgment should have awarded

damages to either plaintiff but not both.”

However, Gomez presented evidence of up to $5.6 million in lost profits

because of the defamation and damage to his reputation. The total jury awards for

lost profits awarded to Gomez P.A. and reputational damages awarded to Gomez

was $5,022,000, which falls within the range of the evidence presented as to total

64 lost profits and reputational damages, whether lost to Gomez as an individual or

lost to Gomez as a one-person professional association. The jury was entitled to

apportion the damages testified to by Carter among the different damages theories.

Thus, we reject MHHS’s arguments that the jury’s awards of reputational damages

to Gomez and lost profits damages to Gomez P.A. constituted a double recovery

under the facts of this case. See Cessna Aircraft Co. v. Aircraft Network, L.L.C.,

213 S.W.3d 455, 464–65 (Tex. App.—Dallas 2006, pet. denied) (holding that

damage awards are duplicative if they compensate party for same injury and that

recovery for both lost profits and injury to business reputation are not necessarily

duplicative); see also Forbes Inc., 124 S.W.3d at 170 (holding that “defamation

actions chiefly serve to protect the personal reputation of an injured party, while a

business disparagement claim protects economic interests”).

MHHS also argues that the exemplary damages awards made by the jury to

Gomez P.A.7 based on its finding of actual malice with regard to the Auzenne data

fail because the liability finding was not unanimous, there was no evidence of lost

profits, and there was no evidence of malice to support any award at all. As set out

above, we have already concluded that there was legally sufficient evidence of lost

7 The jury also awarded exemplary damages to Gomez based on a finding of malice with regard to the Auzenne data, but because jury polling showed that that the jury was not unanimous in finding publication in response to a predicate liability question as to Gomez, the final judgment did not award those exemplary damages to Gomez. 65 profits and malice with regard to the Auzenne data. Furthermore, MHHS’s

argument that the liability finding as to Gomez P.A. was not unanimous is not

supported by the record. The jury verdict reflected that it was not entirely

unanimous. However, the jury made a special certification that the exemplary

damages findings were unanimous. Nothing in the record indicates that the

predicate liability findings on Gomez P.A.’s business disparagement claim arising

out of MHHS’s use of the Auzenne data were not unanimous.

We overrule MHHS’s sixth issue.8

8 Gomez and Gomez P.A. also filed a contingent cross appeal that Gomez waived in the event that this Court affirmed the trial court’s judgment. Because we affirm the judgment of the trial court, we need not address the cross claim.

66 Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes and Lloyd.9

9 This case was originally submitted on October 20, 2018, for oral argument to a panel consisting of Justices Keyes, Bland, and Lloyd. Justice Bland’s term of office subsequently terminated on December 31, 2018. By operation of Texas Rule of Appellate Procedure 41.1, the case may now be decided by the two remaining justices who participated in oral argument. See TEX. R. APP. P. 41.1(b) (providing, “After argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices”). 67