The Virginia Defamation Law Blog
Sometimes the context in which a statement is made provides the speaker with a qualified privilege against defamation claims. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. If such a privilege applies, the speaker will not be liable for slander unless the plaintiff can show by “clear and convincing” proof that the privilege has been lost or abused. In a published opinion released yesterday by the Supreme Court of Virginia, the court reversed its prior decisions mandating that the speaker have acted in good faith as a prerequisite to the privilege attaching, and clarified the situations in which the privilege can be lost or abused.
The case involved a dispute between Dr. Robert Smith, a trauma surgeon, and Dr. Bradley Cashion, an anesthesiologist. In November of 2009, the two were part of an emergency operating team providing care to a critically injured patient. The patient did not survive the procedure, and Dr. Smith blamed Dr. Cashion. In the presence of other members of the operating team, Dr. Smith claimed the patient “could have made it with better resuscitation” and directly accused Dr. Cashion of purposefully failing to resuscitate him. “You just euthanized my patient,” he allegedly told Dr. Cashion.
The trial court sustained Dr. Smith’s demurrer to the statements that the patient “could have made it with better resuscitation” and “[y]ou determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him,” finding them both to be non-actionable expressions of opinion. The Virginia Supreme Court disagreed, finding that both statements attributed the patient’s death to Dr. Cashion’s action or inaction, which it found to be an allegation of fact capable of being proven true or false. The latter statement was held to be the equivalent of the “you just euthanized my patient” statement, which the trial court correctly found to be a 
statement of fact. (Note: Justice McClanahan, however, found the euthanasia references to be mere rhetorical hyperbole, and wrote a detailed dissenting opinion explaining why she would find the statements not actionable).
On the matter of privilege, the Supreme Court agreed with the trial court’s determination that Dr. Smith’s euthanasia statements were qualifiedly privileged as a matter of law. All persons hearing the statements had a continuing interest in the level of care that had been provided and the cause of the patient’s death. Good faith, the Court clarified, is not a prerequisite for attachment of the privilege. Good faith is a matter to be submitted to the jury, for its consideration in determining whether the privilege has been lost or abused.
Finally, the Court explained that the trial court erred by ruling that a qualified privilege may be lost only by clear and convincing evidence of personal spite or ill will. Such common-law malice is but one of numerous ways in which the privilege can be lost or abused. Among other ways, the privilege can be lost upon a showing that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith.
The Virginia Supreme Court reversed the trial court’s entry of summary judgment for the defendant and sent the case back for further proceedings.