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Anti-SLAPP Statutes and Peer Review

By David M. Axelrad and Jeremy B. Rosen

Hospitals trying to assemble a peer review committee to review another practitioner's record and perhaps impose sanctions for substandard performance have their jobs cut out for them because physicians are often reluctant to pass judgment on a colleague. In addition to this natural reticence, those who sit on or testify at a peer review proceeding have another reason to want to avoid it: the threat of lawsuits brought by the medical practitioner facing discipline. The scope of the problem is obvious: without willing and honest participants, the peer-review system that helps keep patients safe is compromised.

In recent years, a small number of people sued by disgruntled medical practitioners for statements made before hospital peer review and state licensing boards have attempted to scuttle those suits by using state-law anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes. SLAPP suits are, by definition, meritless suits brought not to win, but to use the litigation to deter, intimidate or punish citizens who either will or have reported violations of law, written to government officials or testified before governmental bodies. Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156 (1998). Anti-SLAPP legislation has been passed in several states, including California, Delaware, Georgia, New York, Minnesota, Ten-nessee and others. Can this legislation help participants in peer review and other medical competence proceedings when the person who was the subject of the proceeding cries 'Defamation!' or 'Interference with contractual relations?' The law is developing, and some recent decisions show that the answer to that question is still open to interpretation.

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