Qualified Immunity from Defamation Claim when Reporting Medical Misconduct

Torts—Qualified Privilege for Reporting Professional Misconduct

Advanced Cardiac Specialists v. Tri-City Cardiology Consultants, 563 Ariz. Adv. Rep. 14 (App. Div. I, August 25, 2009) (J. Swann)

ARS 32-1451ABROGATES COMMON LAW ABSOLUTE PRIVILEGE TO REPORT MEDICAL MALFEASANCE AND SUBSTITUTES QUALIFIED PRIVILEGE REQUIRING SHOWING OF “GOOD FAITH”

Defendant doctors sent a complaint letter concerning plaintiff doctors to the Arizona Medical Board alleging they were buying pacemakers on E-bay, some of which were stolen, overcharging patients for them and implanting them without the required manufacturer representative in the operating room. Defendants also claimed in the complaint letter that plaintiffs were a “blight upon the medical profession.”

Plaintiffs sued the defendants for defamation. Defendants claimed an absolute and qualified privilege for reporting professional misconduct to a quasi-judicial body. The trial court granted defendants motion for summary judgment and the plaintiffs appealed.

The Arizona Court of Appeals found the common law right to absolute immunity to be abrogated by ARS sec. 32-1451 (A) which provides qualified immunity to “any person” who reports medical misconduct to the board in “good faith.” To overcome the immunity it was incumbent upon the plaintiffs to produce clear and convincing evidence that the publication was with actual malice or by demonstrating excessive publication.

Actual malice requires a showing the defendant knew the statement was false or “entertained doubts” as to its veracity. The burden to prove the defendant acted in bad faith and with actual malice even though this “puts a premium on ignorance and encourages the irresponsible publisher not to inquire.” Negligence is the appropriate standard when the matter does not concern a public figure or unlike here is not concerning an issue of public concern.

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