Redouane Goulmamine, M.D., is physician based in Petersburg, Virginia, who conducts business under the name “The Petersburg Spine Center.” According to a complaint he filed in the Richmond Division of the Eastern District of Virginia federal court, he became aware that several employees of CVS Pharmacy were providing false information about him to patients and refusing to fill prescriptions he had written. CVS eventually made it official, sending him a letter notifying him that the pharmacy would no longer fill his prescriptions and implying its decision was based on its belief that Dr. Goulmamine had been writing pain-pill prescriptions for drug addicts.
Dr. Goulmamine sued CVS for defamation, insulting words, and tortious interference with contract/business expectancy. The complaint recites nearly two-dozen conversations with CVS employees alleged to be defamatory. Some of the statements were clearly statements of opinion (e.g., “he is filling too many prescriptions”), but the court noted that several alleged statements amounted to statements of fact that were claimed to be false. These statements primarily fell into two camps: (1) false factual statements about Dr. Goulmamine himself (e.g., that he was in jail; that he had overprescribed to a pregnant patient; that one of his patients had died from a Xanax overdose; and that someone in his office was producing fraudulent prescriptions); and (2) false or misleading factual statements about Dr. Goulmamine’s standing in relationship to regulatory bodies (e.g., that the DEA, FBI, or Board of Medicine was investigating him or had revoked his license, or that he was being “audited.”)
CVS moved to dismiss. In a detailed 44-page opinion, Judge Payne explained why he was granting the motion with respect to the claims for insulting words and tortious interference, but denying the motion with respect to the defamation claim. Because the opinion is so lengthy, I’m going to discuss and comment on the defamation issues in this post, and save the discussion of the insulting words claim for another day.
1. Statements Held Actionable
The court first dealt with the issue of whether Dr. Goulmamine had pled actionable statements. Because falsity has to be assumed at the 12(b)(6) motion-to-dismiss stage when a complaint alleges falsity, the “actionable” inquiry focused on whether the factual statements at issue were defamatory in nature and whether they were statements of fact or statements of opinion.
Determining defamatory meaning was a fairly easy analysis, as Virginia law recognizes certain types of defamation as defamatory per se, and included among those types is a statement that imputes to the plaintiff the commission of a criminal offense of moral turpitude, or a statement that impugns his fitness for his profession. Here, there were statements that Dr. Goulmamine caused drug overdoses, which would be defamatory per se. Statements that Dr. Goulmamine committed misconduct worthy of losing his license to practice medicine would also qualify.
The fact-vs.-opinion issue was a little more involved. Many of the alleged statements were clearly statements of opinion, but the court observed that Virginia law recognizes “two caveats” to the “opinions cannot be defamatory” rule: (1) statements phrased as opinions may be actionable if they imply or insinuate a provably false factual connotation; and (2) “a statement of opinion may be actionable when it reasonably can be construed as a statement of fact because it is laden with factual content and the underlying facts are allegedly false.” The court concluded that many of the statements CVS identified as opinions were actionable either because they were “verifiably false” or “based on untrue facts.”
(Note: In my view, these two principles aren’t exceptions at all; statements of pure opinion remain constitutionally protected. The first “caveat” merely illustrates that sometimes statements worded as opinions nevertheless result in the communication of factual representations capable of being proven true or false. The second is an expression of the idea that fact-finders should consider the entire context of a statement to determine its true meaning, even if that context includes some statements of opinion. In both cases, defamation liability is based on misrepresentation of factual information, not opinions. Opinions “based on untrue facts” are not actionable unless those untrue facts are somehow communicated to the listener or reader.)
2. Qualified Privilege Questioned, Rejected
CVS argued that the statements between pharmacists and their patients were protected by qualified privilege, and Dr. Goulmamine did not dispute the existence of a privilege. The court, however, pointed out that “no Virginia court has ever applied qualified privilege to pharmacist-patient communications” and noted that “the overwhelming majority of qualified privilege cases…deal with intra-organizational immunity.” While acknowledging that Virginia’s pharmacist-licensing statute requires pharmacists to screen new prescriptions for clinical abuse, the court found significant that the pharmacist’s statutory duty to conduct such a review did not include a duty to discuss clinical abuse with patients.
(Note: I think the court’s concern is unwarranted. Virginia courts have not recognized a pharmacist-patient privilege in the evidentiary sense, but that doesn’t mean they wouldn’t apply a qualified privilege to such communications in the context of assessing defamation liability. The Virginia Supreme Court has never required, as a prerequisite to attaching a qualified privilege, that participants to the communication share a statutory duty, or that the communication be only between members of a shared organization.)
The court refused to find the statements privileged as a matter of law, but invited CVS to renew its argument on summary judgment if it could find Virginia authority to back it up. In addition, the court found that even if Virginia does recognize a pharmacist-patient qualified privilege, a triable issue of fact existed as to whether CVS abused the privilege, either through reckless disregard for the truth, or by using unnecessarily strong language disproportionate to the occasion. Because these are jury issues, the court denied the motion to dismiss the defamation claim.
(Note: For those who actually read the opinion, bear in mind that there is a difference between “actual malice” and “common-law malice”, and the discussion on pages 23-26 (including the footnote) blurs the line in places, which can lead to confusion. Qualified privilege can be lost or abused through any of several elements of common-law malice (such as unnecessarily strong language), whereas “actual malice” refers to the level of fault that must be proven by certain plaintiffs (such as knowledge of falsity).)
Although I question some of the court’s reasoning and word choice, I believe the court made the right decision: the complaint alleges sufficient facts to state a cognizable claim for defamation under Virginia law. Most Virginia state courts would probably find the statements covered by a qualified privilege, but that’s a privilege that can be lost or abused, and whether that has happened is a matter for the jury to decide.