Doctor Hit with Defamation Suit After Advising Patient to Sue Colleague

Twenty-eight states, plus the District of Columbia, have enacted anti-SLAPP statutes
Twenty-eight states, plus the District of Columbia, have enacted anti-SLAPP statutes

This month's case looks at the interesting question of whether a physician can be sued for defamation for reporting a colleague to the hospital's peer-review board and advising a former patient to file a complaint with the state medical board and institute medical malpractice proceedings.

Dr. G was a surgeon at a regional medical center in California. He had been working at the hospital for several years when the hospital hired another surgeon, Dr. B, to perform vascular and other types of surgery.

The two physicians worked collegially for a little over a year, until one of Dr. B's patients came to Dr. G with a problem. The patient, Mr. X, was suffering from renal failure and had undergone surgery with Dr. B to create an arteriovenous fistula in his left arm in order to receive dialysis. However, the patient began experiencing post-operative complications, including numbness and tingling in his arm, causing him to seek the advice of Dr. G. While treating the patient for these issues, Dr. G concluded that the fistula was too deep to be accessible during dialysis.

Dr. G passed on this unfortunate news to the patient, who was understandably upset. To correct the situation, Dr. G performed surgery on the patient but he was unable to salvage the existing fistula. The surgeon had to create a second fistula in the same arm.

When Dr. G raised the issue with Dr. B, the surgeon became defensive and insisted that there was nothing wrong with the original fistula and that he believed it to be adequate and usable for dialysis. Dr. G strongly disagreed, and felt sorry for the patient who'd had to have an additional surgery. He believed that Dr. B had not treated the patient properly, and he told the patient this.

“I'm truly sorry this happened to you,” said the surgeon sincerely. “I want you to know that I am going to ask the hospital to look into this, and if I were you, I'd consider filing a complaint with the state medical board, and maybe consulting with an attorney about a medical malpractice lawsuit.”

True to his word, Dr. G reported Dr. B to the hospital's quality assurance department and recommended that the hospital open an investigation, which it did. The hospital's internal peer review committee decided that Dr. B's technique in performing the fistula surgery was within the standard of care, but that he had failed to meet the standard of care by choosing the third best available location for creating the fistula. The hospital cancelled Dr. B's contract and took away his privileges to perform fistula surgery.

The patient, meanwhile, filed a complaint with the state medical board, and filed a medical malpractice lawsuit against Dr. B in small claims court. The medical board criticized Dr. B for failing to keep thorough notes of his treatment of the patient, but closed its investigation without taking further action.

The malpractice case against Dr. B was decided in his favor because the patient had failed to introduce medical expert testimony to support his claim.

Dr. B was furious at his former colleague. He had now lost his contract and privileges at the hospital and had to suffer through a malpractice lawsuit and a medical board investigation. He blamed this completely on Dr. G. Enraged, Dr. B hired an attorney and sued Dr. G for defamation.