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).