The Appeal

With regards to the peer-review privilege, the Court of Appeals reiterated the importance of the peer review process, “Courts have recognized that the confidentiality of peer review committee proceedings is essential to achieve complete investigation and review of medical care.” The court noted that peer review proceedings would be substantially compromised if they were subject to the discovery process. It held that the lower court did not abuse its discretion by denying Dr S’s requests for privileged documents, and without this privileged information, he had no case against Ms D.

The Court of Appeals then looked at the defamation claim against Dr G. First, the court noted that to support a claim for defamation, a statement about a private figure must be false, and must either cause the subject of the statement to be in “disrepute, contempt, or ridicule” or impeach the person’s “honesty, integrity, virtue, or reputation.” A true statement, even if it causes harm to a reputation, cannot support a claim of defamation. The claim must be false.

The court noted that as a matter of law, a statement is not actionable if it is comprised of loose, figurative, or hyperbolic language that cannot reasonably be interpreted as stating or implying facts that can be proven true or false. The key factor, said the court, “is whether the challenged expression, however labeled by the defendant, would reasonably appear to state or imply assertions of objective fact.” Opinions are generally not subject to defamation liability unless they imply a false assertion of fact. In other words, said the court, “if a statement of opinion may be proven false, it is actionable as defamatory.”

Looking at Dr G’s statement that Dr S was “an idiot who gave tPA to an obvious case of intracerebral hemorrhage,” the court noted that it was a statement made in anger, and that Dr S neither denied that he had administered the blood thinner to the patient nor that the patient had an intracerebral hemorrhage. Rather, Dr S argued that he was not “an idiot” and that the patient’s hemorrhage was not obvious at the time.

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“Viewed in context,” said the court, Dr G’s “angry statement to a fellow physician did not suggest that Dr S, a board-certified specialist in cardiovascular medicine, suffers from an extreme intellectual disability, as the term “idiot” was historically used in both medical and educational settings.” Instead, the court concluded that Dr G was expressing his belief that Dr S had acted foolishly. The Court of Appeals ultimately agreed with the lower court that Dr G’s use of the term “idiot” was subjective and not actionable as a matter of law because it did not present “the kind of empirical question a fact-finder can resolve.” The case was dismissed.

The Bottom Line

There are public policy reasons to protect information that comes out of the peer review process. Defamation is hard to prove and statements of opinion are not actionable as defamation.