Court dismisses part of defamation suit against Carney Hospital; rules talking to a reporter can be like petitioning the government

A state law intended to protect residents from having their free speech squashed through lawsuits by large companies can also protect corporate executives who talk to the media when they're under state scrutiny, the Massachusetts Appeals Court ruled yesterday.

The ruling comes in a defamation lawsuit filed by former nurses at Steward Health Care System's Carney Hospital in Dorchester, who were fired in 2011 after an investigation into alleged sexual abuse of a patient in a hospital ward for teen psychiatric patients.

But while the court dismissed the part of the nurses' lawsuit based on comments by then hospital President Bill Walczak in Globe stories, they allowed the lawsuit to proceed on the issue of whether Walczak defamed the nurses in e-mail to hospital staffers, which were never intended for public view.

The nurses charge Walczak libeled them in comments in two articles in the Globe after their firings.

In its ruling, the appeals court cited the intense scrutiny of the hospital by state regulators over the issue and agreed with the hospital that Walczak's Globe comments were covered by the state law that prohibits companies from suing residents who "petition" government agencies for action - something they're allowed to do under the First Amendment and the comparable section of the state constitution.

Such cases typically involve issues such as developers seeking local Planning Board approvals for controversial projects, but the court said it applies equally to hospital presidents under the eye of state regulators - even if they are not talking directly to those regulators:

With the agencies continuously monitoring the situation and the unavoidable publicity that developed around it, the media essentially became a venue to express the perspectives of each side; as such, the Boston Globe articles were available to, and likely considered by, the regulatory agencies. The judge erred in concluding that the statements to the Boston Globe were not protected activity on the ground that the Steward defendants, both directly and through [former state Attorney General Scott] Harshbarger [hired to investigate the situation], "already were in communication with the agencies regarding their investigation." This conclusion ignored Harshbarger's averments regarding those communications. His affidavit stated, "At this point, DMH's investigation was ongoing and the possibility that the Unit's license to operate would be revoked and the Unit would be closed was still not only being considered, but highly likely. There was some public pressure on the agencies to close the Unit and withdraw the necessary license."

Walczak's statements in the Boston Globe describing the actions the hospital had taken -- particularly where there was ongoing public pressure on the agencies to close the unit and to withdraw the hospital's license to operate the unit -- were important affirmations, as they came from the president of the hospital himself in support of the urgent goal of influencing DMH to preserve the license, and were thus legitimate protected activity. ... In attempting to reach and educate through the media the opponents in the public who had been pressuring the agencies to revoke the license, Walczak's statements possessed the characteristics of petitioning activity.

In context and in totality, Walczak's statements to the Boston Globe were in furtherance of the overriding strategic mission of bringing to bear upon the regulatory decisionmakers the seriousness of the hospital's effort to reform the institution. As such, the Steward defendants have satisfied their burden of making a threshold showing that the plaintiffs' "claims [are] 'based on' [the] petitioning activit[y] alone and have no substantial basis other than or in addition to [the] petitioning activit[y]."

The court ruled that the e-mail was not similarly covered by the state law because they were never intended to reach the eyes of state regulators.