One Doctor Calls Another Doctor an Idiot. Defamation?

The peer review process can get heated. As can hospital banter.

An Arizona appellate court case highlighted the protections inherent in peer review, as well as the steep climb to prevailing in a defamation lawsuit.

The allegation.

Dr. G, the chair of cardiology, made damaging false statements when he told another cardiologist that Dr. S [also known as plaintiff physician] “is an idiot” who administered blood thinner” to an obvious case of intracerebral hemorrhage:

In their answers, Dr. G did not deny making the alleged statements. Dr. G, however, asserted that to the extent he made any assertions of fact, they were true, and that otherwise, his statements were merely opinion, and therefore not actionable. The other defendant, in turn, maintained that she was immune from liability because her actions “were done as part of and within” protected peer-review proceedings.

The court explained that even assuming Dr. G made the alleged statements to his fellow cardiologist, there was no dispute that the plaintiff physician had, in fact, administered blood thinner to a patient who had an intracerebral hemorrhage. Further, concluding that the “characteriz[ation]” of the [plaintiff physician’s conduct] “as idiotic” was “nothing more” than a “subjective impression,” the court found Dr. G’s alleged “assessment” was not an actionable statement of fact. Turning to the allegations against the other defendant, the court found that the plaintiff physician had failed to produce any admissible evidence showing that the other defendant “made any comments about him, defamatory or otherwise, outside the context of…peer review activities.”

To support a claim for defamation, a statement about a private figure on a matter of private concern “must be false” and must bring the subject of the statement “into disrepute, contempt, or ridicule” or impeach the subject’s “honesty, integrity, virtue, or reputation.

As a matter of law, a statement is not actionable if it is comprised of “loose, figurative, or hyperbolic language” that cannot reasonably be interpreted as stating or implying facts “susceptible of being proved true or false.

With these principles in mind, we consider Dr. G’s alleged statements. To prove his defamation claim against Dr. G, the plaintiff physician relied primarily on the declaration of Dr. S, another cardiologist. As detailed in her brief statement, Dr. S saw and heard Dr. G talking to another cardiologist through a partially open door. She recounted that Dr G stated: “[The plaintiff physician] is an idiot. We finished his venous career here and won’t let it continue anywhere at our institution. He gave tPA to an obvious case of intracerebral hemorrhage.” From Dr. G’s tone and demeanor, Dr. S concluded that he was “angry.”

Addressing the alleged falsity of Dr. G’s statements, the plaintiff physician neither denied that he administered blood thinner to the patient nor that she had an intracerebral hemorrhage. He argued instead that he was not an “idiot” and that the patient’s hemorrhage was not obvious at the time. In support, he asserted that he had an expert who would testify that a CT scan of the patient “complete[ly] negated” the “possibility” of a hemorrhage and that “no physician could interpret [the patient’s] chart — at the time [] he administered tPA — in such a manner as to indicate that [the patient’s] condition was `obvious.'”

Viewed in context, Dr. G’s “angry” statement to a fellow physician that the plaintiff physician is “an idiot” clearly did not suggest that the plaintiff physician, a board-certified specialist in cardiovascular medicine, suffers from an extreme intellectual disability, as the term “idiot” was historically used in both medical and educational settings. See Idiot, Merriam-Webster, https://www.merriam- webster.com/dictionary/idiot (last visited August 4, 2021). Instead, consistent with the modern understanding of the word and common usage, Dr. G was expressing his belief that the plaintiff physician acted foolishly. See id. (defining “idiot” as “a foolish or stupid person”). Because assessments like these of foolishness or stupidity are subjective determinations, there is no means to establish their truth or falsity. In other words, a statement that someone is an idiot is inherently a statement of opinion, not objective fact. See Steinhausen v. HomeServices of Nebraska, Inc., 857 N.W.2d 816, 828 (Neb. 2015) (concluding that the term “idiot” is a “subjective impression[]” that “cannot be defamatory”). Therefore, we agree with the superior court that Dr. G’s “idiot” statement is not actionable as a matter of law because it does not present “the kind of empirical question a fact-finder can resolve.”

Turning to Dr. G’s description of the patient’s hemorrhage as “obvious,” we apply a similar analysis. Whether something is easily perceived or understood is a matter of opinion. See Obvious, Merriam-Webster, https://www.merriam- webster.com/dictionary/obvious (last visited August, 2021) (defining “obvious” as “easily discovered, seen, or understood”). Had Dr. G told his colleague that the patient’s hemorrhage was diagnosed, documented, or otherwise confirmed, he would have been stating a matter of objective fact, provable as true or false. Instead, he expressed his belief that the hemorrhage should have been readily apparent. To refute Dr. G’s assertion, the plaintiff physician asserted his expert would testify that a reasonable doctor would not have detected the patient’s hemorrhage before administering a blood-thinner medication. The nature of the opinion evidence plaintiff physician asserted he could offer to prove defamation belies one of the tort’s requisite elements—the utterance of a statement of fact. Moreover, as Dr. G points out, the overall impression of his words, including his alleged angry tone and use of the term “idiot,” would not lead a reasonable listener to believe that he was making a statement of verifiable, medical fact.

OK, let’s dig in.

There were two defendants. A cardiologist (Dr. G). And hospital counsel.

Both were being sued by Dr. S, another cardiologist, for defamation. Incidentally, Dr. S had his privileges previously revoked by the hospital.

Hospital counsel easily prevailed because she successfully argued that any statement she made was in the context of peer review. And peer review back and forth banter is typically protected. She was immune from the tort of defamation assuming her statements were made within the closed door of peer review. By the way, the amount of state law protections varies from state to state. Some protections are absolute. Some are qualified. Suffice it to say that even in states with qualified immunity, the bar for getting around peer review immunity is high.

Regarding Dr. G calling the other cardiologist an idiot. He never denied making the statement. As to whether he argued he also had peer review protection, the appellate court did not focus on that defense. Instead, it noted that “idiot” was a hyperbolic statement of opinion, which cannot be categorically proven as true or false. Dr. S. had not had specific neurocognitive testing. And a reasonable would have concluded that Dr. G was just voicing his belief that Dr. S’s actions were not wise.

Another potential defense for defamation is that the reputation-damaging statement is actually true. If, for example, there had been neurocognitive testing which identified that Dr. S had significant deficits, then making the statement as an asserted fact, would also have been potentially “defensible” against allegations of defamation. Of course, if a physician had such testing performed, and those results demonstrated holistic deficits, one might properly ask who granted that physician privileges to practice at that institution. In any event, it was not addressed in the appellate decision.

Hyperbolic words such as idiot, butcher, hack – you’ve seen them all on the internet – are insulting. But they are rarely actionable in the context of extracting cash via a defamation lawsuit. They’re treated as opinions. And opinions are not the same as false statements of fact. To prevail in a defamation lawsuit, you have to prove a false statement of fact was made, and it damaged your reputation.

In terms of adding insult to injury, Dr. S (the plaintiff physician) was assessed costs for the other side’s attorney’s fees. Over $100k.

Ouch.

What do you think?