The Virginia Defamation Law Blog
Defamation liability isn’t limited to false statements made in direct and unequivocal terms; liability may also arise out of statements made by inference, implication, or insinuation. If a jury verdict is based on a statement of opinion (which might happen if the trial court erroneously overrules a demurrer), the verdict should be set aside or reversed because statements of opinion are protected by the First Amendment and are not actionable. Upholding the verdict, however, doesn’t necessarily require that the verdict be based on a factual assertion that is false on its face. If the words at issue are reasonably capable of a defamatory interpretation through inference or innuendo, that will be sufficient to uphold the verdict. A statement may be actionable if the words carry a provably false factual connotation, even if not expressed directly.
Earlier this week, the Virginia Court of Appeals decided Brown v. Grundy, Record No. 1467-23-4, which involved a challenge to a defamation verdict of $2 million (reduced by trial court to $1.85 million). The case centered on a letter sent by Charles H. Brown, III, D.D.S., to patients of his dental practice, explaining the supposed reasons for the termination of his associate, Dr. Richard B. Grundy. On December 4, 2018—two days before officially terminating Dr. Grundy’s employment—Dr. Brown sent a letter to patients in which he offered an explanation that included the following:
The Virginia Board of Dentistry and the State of Virginia have guidelines and regulations that govern the practice of dentistry in this state. Dentists that do not follow those guidelines can be disciplined, fined and even have their ability to practice dentistry restricted or revoked. Unfortunately, Dr. Grundy has refused to adhere to some of those guidelines/regulations and the board of dentistry is currently looking into those issues. This has created significant problems and potential liability for the practice. Dr. Grundy had been advised on this but has continued to refuse to adhere to certain guidance specifically given to me by the Board of Dentistry regarding his actions and lack of compliance. I have no explanation for his refusal and he would not provide one to me. The board may eventually issue a decision regarding this matter that may be publicly available.
Dr. Grundy was the primary dentist for approximately 750 patients at that time. He sued Dr. Brown for defamation per se, claiming the letter contained false and damaging statements about his professional conduct. He prevailed. Dr. Brown took the case to the Court of Appeals, arguing that several of the statements presented to the jury were non-actionable as a matter of law. The court disagreed and upheld the verdict, finding that all four challenged statements were both provably true or false and that they contained the requisite 
“sting” to Dr. Grundy’s reputation as a dentist to support the verdict.
“Unfortunately, Dr. Grundy has refused to adhere to some of those guidelines/regulations and the board of dentistry is currently looking into those issues.”
Dr. Brown argued that this was a statement of opinion. Not so, held the court. The statement implies that Dr. Grundy violated professional rules and is under investigation, which are assertions of fact. The statement doesn’t merely express an opinion about whether guidelines were violated; rather, it focuses on Dr. Grundy’s refusal to adhere to them. The court found this capable of being proven true or false and noted its serious implications for a professional’s reputation. The statement also “insinuates that Dr. Grundy had flouted direct guidance from the Board,” making the statement actionable as implied defamation.
“I have no explanation for his refusal and he would not provide one to me.”
Dr. Brown challenged this statement for its lack of defamatory sting, arguing that it reflected only a bit of friction between the two dentists and did not rise to the level of actionable defamation. The court disagreed, emphasizing the need to consider the full context of the statement. The statement came on the heels of claims that Dr. Grundy repeatedly refused to follow Board guidance, suggesting that Dr. Grundy was both noncompliant and evasive, reinforcing an image of professional irresponsibility.
“In addition to the reasons above, the termination is also due, in part, to complaints. If Dr. Grundy has said anything to you in the office or on the phone, that makes you uncomfortable, or that you consider inappropriate, please notify a manager or me so that we can confidentially and privately document the interaction.”
Dr. Brown’s argument here was that the statement was essentially too vague to be actionable–that the patients who received the letter weren’t given any information about what the complaints might be about, so the statement lacked defamatory sting. Here again, the court looked to principles of implied defamation in concluding the jury instruction was proper. Although phrased conditionally, the context implies prior patient complaints about inappropriate behavior by Dr. Grundy. The court found that a reasonable reader would infer that there were existing concerns about misconduct, and that these complaints were credible enough to justify termination. These implications could seriously damage a dentist’s professional standing, satisfying the “sting” requirement.
“There is some additional information that I am required to give to you. The [D]epartment of Health and Human Services OCR oversees HIPAA and the protection of patients’ private information. There are also now issues related to Dr. Grundy’s handling of his former patients’ protected personal and private information.”
This statement was also determined by the Court of Appeals to be actionable, as it implied that Dr. Grundy mishandled confidential patient information, potentially in violation of HIPAA. The court held that such conduct would undoubtedly be prejudicial to a dentist’s reputation and is a provable fact, not mere opinion. It was not merely a vague concern but carried the insinuation of misconduct serious enough to involve federal oversight. And it was worded in such as way as to allow it to be reasonably interpreted as saying that the Department of Health and Human Services had raised issues with Dr. Grundy’s handling of patients’ information, which was a matter of fact and not opinion.
Ultimately, he Court of Appeals of Virginia affirmed the trial court’s judgment, finding that the lower court had properly fulfilled its “gatekeeping function” in determining that all four statements were actionable as a matter of law. Each statement was either a direct accusation or carried a defamatory implication that could be proved true or false and had sufficient reputational harm to be classified as defamation per se.