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Loose Lips Sink Ships: Defamation in the Medical Workplace

By Michael J. Mersot

The Illinois Appellate Court First District recently examined the sufficiency of slander allegations by physicians against fellow physicians in Tunca v. Painter. The plaintiff in the case surgically removed an ovarian tumor from a patient, but within hours the patient developed a clot requiring a femoral bypass performed by a vascular surgeon, Dr. Painter. Following the bypass surgery, Dr. Painter allegedly told the vice-president of medical affairs at the hospital that the plaintiff “inadvertently and negligently” cut the patient’s artery during the tumor operation. An investigation by the medical quality committee ensued. Dr. Conway, head of the committee, allegedly told the plaintiff, in the presence of other doctors, that he would be receiving a letter from the committee in reference to the investigation. Additionally, Dr. Conway also allegedly made statements to other physicians, both inside and outside of the confines of the committee, that the plaintiff negligently severed the patient’s artery. The plaintiff sued Dr. Painter and Dr. Conway for slander per se and slander per quod.

The defendants sought to dismiss based on three principle defenses: 1) that the statements regarding negligence were constitutionally protected statements of opinion, 2) that the statements had an innocent construction and 3) that the plaintiff failed to specifically allege damages as required for actions for slander per quod. The district court dismissed, but the appellate court reversed, holding that the amended complaint stated a cause of action.

Although statements of opinion are not actionable for defamation, the appellate court explained that, at least in a professional context, statements that a party was “negligent” is not a mere statement of opinion. Rather, such an assertion, while presented under the auspices of an opinion, really presents the listener with a statement of fact – that the negligent party is incompetent to perform his profession. The court held that such a statement is defamatory on its face, and likewise incapable of any innocent construction. Furthermore, the court held that while a plaintiff must plead damages as a result of the slander with specificity, lost business may come from those who heard the slanderous statement second-hand. That is to say, damages due to defamation do not stop with those who personally witnessed the statements.

It is of note that initially the plaintiff sought to impose liability on Dr. Conway for the statements made to the medical quality committee. Those allegations were dismissed as statements to such a committee are statutorily protected by the Medical Studies Act, 735 ILCS 5/8-2103. The Act provides that “[t]he furnishing of such information in the course of a research project to . . . in-hospital staff committees or their authorized representatives, shall not subject any person, hospital… to any action for damages or other relief.” The defendants in Tunca were denied dismissal on the remaining allegations because they made statements outside of the committee.

The decision in Tunca indicates that statements, even when uttered with the best of intentions, must be carefully considered where the listener could be left with an impression of professional negligence. Based on the analysis of the court, any statement bearing on professional negligence is potentially actionable. In the medical context, there is a time and place to raise concerns regarding professional competence. That time is at the regularly scheduled proceedings of an established medical review committee. What occurs in the committee should stay with the committee, else the speaker may be subject to an action for defamation.