I have been defamed and my career is ruined. Can I sue?'

Sep 01, 2004, 4:00am

An opinion is not enough to lead to a successful defamation lawsuit.

Envied by all He is the envy of many plastic surgeons in his small town community. Dr. Lipos recently became aware of possible state legislation that would prohibit him from performing liposuction in his office if he does not have hospital privileges to perform the same procedure.

He is not terribly concerned since he is already on staff at the local community hospital in his small town. In this hospital he already has privileges to perform excisions and many laser procedures. He has even performed ablative laser procedures with the assistance of anesthesiologists on staff at the hospital.

The credentialing committee at the local hospital contains three general surgeons, a plastic surgeon named Dr. Plastic, a pediatrician and an internist. The credentialing committee denies liposuction privileges for Dr. Lipos. Apparently, the plastic surgeon on the credentialing committee made a strong argument suggesting that liposuction is a serious surgical procedure and one that should only be undertaken by trained "surgeons." He also cites several malpractice cases against Dr. Lipos - none that involved liposuction.

Three weeks later, an article appears in the local newspaper describing the incompetence of Dr. Lipos as evidenced by both his inability to obtain liposuction hospital privileges and a history of malpractice cases against him.

In this small town community, Dr. Lipos' career may be ruined. He brings a multi-million dollar defamation lawsuit against the plastic surgeon. The plastic surgeon's attorney claims that because his client is on the hospital credentialing committee, he is immune from such "peer review" defamation lawsuits. Is this true?

Value of your career What is the value of a physician's career?

One court answered the question to the tune of $4.6 million.

Clearly, defamatory statements can destroy a physician's livelihood. In general, though, such defamatory lawsuits, based on peer review discussions are unsuccessful for the suing physician. This is because defendant physicians making slanderous statements are often protected by the qualified immunity provided by most states to such credentialing committees.

The elements of a defamation claim are: a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; and (c) negligence in such a communication. A statement merely expressing one's opinion is not actionable. If Dr. Plastic merely stated his view that Dr. Lipos lacked the skill to perform liposuction, this opinion cannot lead to a successful lawsuit.

This is true even if the opinion is wrong. An opinion is not enough to lead to a successful defamation lawsuit.

In addition, the peer review credentialing process represents a common situation in which qualified immunity against a defamation lawsuit exists.

Crosses line However, the newspaper publication goes beyond the immunity protection provided to Dr. Plastic. In Purgess v. Sharrock, the Court of Appeals for the Second Circuit provided $4.6 million in damages to a defamed physician. The defamation action involved an anesthesiologist who was terminated by the chief anesthesiologist at his local hospital because of the director's desire to place a close friend in the now available position. The chief anesthesiologist then proceeded to notify both the state medical examiner's office and other hospitals of the termination, citing numerous instances of malpractice.

These statements resulted in the plaintiff's inability to obtain employment with different medical organizations. The court noted that there was malice on part of the chief anesthesiologist and initially awarded the defamed plaintiff $4.6 million. The court noted that the generally provided hospital peer review qualified immunity does not apply to actions meant to destroy a physician's career.