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Association of licensing boards is shielded from litigation over publication of disciplinary action

The Federation of State Medical Boards is entitled to protection under a Texas statute protecting defendants from lawsuits filed in response to the legitimate use of First Amendment rights to free speech in matters of the public interest, regardless of its size and resources relative to an individual plaintiff, a Texas appellate court ruled June 26.

(Day v. Federation of State Medical Boards)

In 2011, after physician Calvin Day, Jr. was indicted for sexual assault and several other people came forward with similar complaints, the Texas Medical Board temporarily suspended Calvin Day’s license and began an investigation.

Day was eventually convicted of sexual assault, but, after an incident of prosecutorial misconduct came to light, that conviction was set aside.

Several of the complainants then refused to cooperate with the board’s investigation, prompting it to reach a settlement with Day lifting his suspension but imposing restrictions on his license.

After the settlement, the Federation posted the existence of the order on a page of its publicly-available national physician database, noting further that the settlement was the result of unprofessional conduct on the part of Day. Day complained to the Federation that the “unprofessional conduct” label was inaccurate.

However, the Federation consulted with the board, which concurred with the label, and then rejected Day’s request to remove the label. Day then sued the Federation.