Doctor's Defamation Claim Reconsidered by Judge Roush

August 13, 2012

Judge Jane Marum Roush of the Fairfax Circuit Court has allowed Dr. Adel Kebaish to amend his complaint against Inova Fairfax Hospital to include four additional statements claimed to be defamatory. Judge Roush had previously found the alleged statements non-actionable but was persuaded by the plaintiff's attorneys to partially reconsider her earlier ruling.

Dr. Kebaish was an orthopedic and spine trauma surgeon at Inova Fairfax Hospital. Dr. Kebaish claims that Inova and several of its doctors and physician assistants defamed him and that Inova terminated him for objecting to substandard care and fraudulent billing practices. He filed a complaint against Inova, one of its administrators and ten of its doctors and physician assistants alleging causes of action for defamation per se as well as other business torts. The defendants demurred on various grounds.

The court reviewed each of the allegedly defamatory statements in the complaint and agreed with Inova that most of the statements were either statements of opinion, not actionable as defamation, or made by persons who were not named as defendants. To successfully state a claim for defamation in Virginia, a plaintiff must show that the ER.jpgdefendant published a false factual statement that harms the plaintiff or the plaintiff's reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation.

The court initially sustained the demurrer to the defamation claim except as to two alleged statements: (1) that Dr. Kebaish had once operated on a patient with a "do not resuscitate" order without the family's consent; and (2) that Dr. Kebaish's privileges at Inova's emergency room had been revoked. Dr. Kebaish moved the court to reconsider its ruling as to the other statements.

Upon reconsideration, the court found that four additional allegations were statements of fact that, if proven to have been made and proven to be false, may be defamatory: (1) a doctor's statement that Dr. Kebaish turned away Medicaid patients; (2) a defendant's statement that Dr. Kebaish had caused a sciatic nerve injury to a patient treated for pelvic fracture and was hiding this fact; (3) a defendant's statement to an investigator for the Virginia Board of Medicine that Dr. Kebaish had operated on patients without taking x-rays, had caused complications, and had missed fractures on patients; and (4) a defendant's statement to potential patients that Dr. Kabaish's "hands shake."