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Doctor defamation case can go to jury

High court splits over ‘waiver’ issue

Supreme CourtA jury can decide whether one doctor defamed another in a clash over treatment of a patient who died after being struck by a tractor-trailer, the Supreme Court of Virginia said on Oct. 31.

Dr. Bradley J. Cashion, an anesthesiologist, sued trauma surgeon Dr. Robert B. Smith over a series of critical comments Smith made before others about Cashion’s role in the patient’s care.  A Roanoke Circuit Court said Smith’s accusations that Cashion had “euthanized” the patient supported a defamation claim, but Smith’s good faith in commenting on his colleague’s performance protected the surgeon.

The Supreme Court said the trial judge erred in taking the case away from the jury based on the surgeon’s good faith. Good faith is just one factor that can overcome the surgeon’s qualified privilege to comment on a colleague’s conduct according to the appellate court.

In Cashion v. Smith, (VLW 013-6-075), the high court clarified that it’s “the judge who determines whether a qualified privilege exists, and it’s the jury’s role to determine whether the privilege has been lost or abused through a number of factors,” including good faith, said Roanoke lawyer Monica Taylor Monday, who represented the anesthesiologist.

The high court also said two additional statements by the surgeon qualified as assertions of fact, not opinion: Smith’s accusations that the injured pedestrian “could have made it with better resuscitation” and that Cashion “purposefully” did not resuscitate the patient.

A threshold procedural issue divided the court and took up much of the court’s 30-page opinion. The majority said Cashion had not waived appellate issues by endorsing the trial court order, “WE ASK FOR THIS,” after each side annotated the demurrer order with their objections on grounds asserted in their pleadings and at the hearing.

The majority said Cashion’s endorsement reflected only his request for the court to enter an order memorializing its ruling, not an acquiescence in the portion of the order that ruled against him. The order was not an “express written agreement” under Va. Code § 8.01-384(A) to waive the argument on appeal, the court said.

But three dissenting justices said Cashion had waived appeal of the additional “non-euthanasia” statements, and the majority opinion “opened the floodgates to invited error.”

Allowing the claim to go forward is a “practitioner-friendly ruling” that acknowledges and reaffirms existing law, Monday said.

“There are a lot of minefields to navigate in the preservation of error,” and the majority view “eliminates the ‘gotcha’” approach to waiver, she said.

Complaints about treatment

Smith was vice chair of the surgery department at Carilion Medical Center when, in the presence of others, he accused Cashion of providing poor treatment and of “euthanizing” the patient.

On appeal, Cashion won the right to shift two of the surgeon’s criticisms from the opinion side to the fact side of the line, and the chance to take his defamation case to a jury.

Describing the line between fact and opinion, the Supreme Court said statements may be actionable if they have a provably false factual connotation and thus are capable of being proven true or false.

Certain of Smith’s statements qualified as “opinion,” the high court agreed, including “[t]his was a very poor effort,” “[y]ou didn’t really try,” and “[y]ou gave up on him.” Those statements “are subjective and wholly depend on Dr. Smith’s viewpoint,” wrote Justice William C. Mims for the high court majority.

However, 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” do not, Mims said.

The statement that the patient “could have made it with better resuscitation” asserts that the patient could have survived, but for the quality of Cashion’s treatment, according to the court majority. Whether the quality of the anesthesiologist’s care caused or contributed to the patient’s death is an allegation of fact that could be proven true or false, for instance, through expert testimony.

The accusation that Cashion purposefully caused the patient’s death by withholding treatment is no different from an accusation of euthanasia, the high court said in reversing the trial court.

But the Supreme Court affirmed the trial court decision that Smith’s statements were not protected as “rhetorical hyperbole.”

Justice Cleo E. Powell, joined by Justices S. Bernard Goodwyn and Elizabeth A. McClanahan, dissented and said Cashion had waived his claim regarding the “non-euthanasia” statements the majority said could support a defamation claim.

Powell wrote that the majority had “made it virtually impossible” for a party to forfeit his right to contest an order on appeal under Code § 8.01-384(A).

Powell and Goodwyn concurred in the court’s judgment on the euthanasia statements. McClanahan said Smith’s euthanasia statements were protected under the federal and state constitutions as “rhetorical hyperbole.”

Roanoke lawyer Frank K. Friedman, who represented defendant Carilion Medical Center, could not be reached for comment.

CORRECTION: This story has been corrected to reflect that Roanoke lawyer Frank K. Friedman represented Carilion Medical Center. Roanoke lawyer Paul G. Beers represented defendant Robert S. Smith, M.D.

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