Virginia Lawyers Weekly VA Lawyers Weekly
A student’s claims that administrators of a Virginia university defamed him during his dismissal from the school’s physician assistant program due to patient safety concerns have survived dismissal.
Judge Thomas T. Cullen of the Western District of Virginia wrote that when “[r]ead in context — and mindful that a defamatory statement may be made ‘by inference, implication or insinuation’ … the court concludes that each statement, as alleged, can sustain claims of defamation and defamation per se.”
The judge also found that the statements were allegedly published to multiple university employees and that it was too early in the litigation to determine qualified privilege.
The July 7 opinion is Doe v. Shenandoah University (VLW 022-3-283).
The dismissal
John Doe enrolled in the Physician Assistant Studies Program, or PA program, at Shenandoah University in July 2018. After he was diagnosed with social anxiety disorder, Doe informed the university and requested accommodations.
According to Doe, this accommodations request sparked a course of conduct by university administrators to force him out of the PA program on “patient safety” grounds.
The university said its final rationale for dismissing Doe was his alleged failure to pass an Objective Structured Clinical Exam, or OSCE. Doe described the OSCE as a “time-limited, practical exam conducted at the end of certain semesters in the PA program and consist[ing] of a set of predefined stations related to patient care.”
The university said its final rationale for dismissing Doe was his alleged failure to pass an Objective Structured Clinical Exam, or OSCE. Doe described the OSCE as a “time-limited, practical exam conducted at the end of certain semesters in the PA program and consist[ing] of a set of predefined stations related to patient care.”
After receiving notice that he failed the OSCE twice, Doe appealed and was granted a third retake, which he also failed.
Doe was dismissed from the PA program after a fourth and final OSCE failure.
The appeals
Doe appealed his dismissal to the university’s dean who denied it on grounds that “[r]eading for accuracy in a clinical environment is required for patient safety.”
Doe then appealed the dean’s decision to the university’s provost. In upholding the dismissal, the provost commented that she could not overlook “the ongoing concerns regarding safety and critical decision making that were raised in your final OSCE attempt.”
Doe’s final appeal to the university president was also denied. The president wrote that the dismissal was “due solely to concerns about patient safety.”
In November 2021, Doe brought several claims against the university, including defamation per quod and per se. He alleged that the statements made by the dean, provost and president of the university during his appeals were defamatory, implied that he was a danger to patients, and were published to other university employees.
The university moved to dismiss the defamation claims, arguing that the statements weren’t defamatory or published, and that qualified privilege applied.
Defamation
Where Doe alleged that the university’s dean, provost, and president each shared the statements with other university employees, Cullen said the publication element was met “regardless of whether the sharing is entitled to qualified privilege.”
After reviewing the three alleged statements, the judge agreed with Doe that his case was controlled by a 2003 Supreme Court of Virginia decision that statements of concern about a doctor’s competence are professionally prejudicial and contain a provably false connotation.
Cullen pointed out that defamatory statements “may be made ‘by inference, implication or insinuation.’”
The judge concluded that “[l]ike the statements in [the controlling case], these statements reasonably imply that Doe is unfit in his chosen profession and may therefore form a basis of a cause of action for defamation and defamation per se.”
Qualified privilege
Cullen said a qualified privilege against defamation applies to “communications between persons on a subject in which the persons have an interest or duty.”
A plaintiff may defeat the privilege with evidence of actual malice, meaning knowledge of falsity or subjectively serious doubt about the truth of a statement.
The university contended that privilege applied because the statements were published only to university employees who needed to be a part of Doe’s appeal process.
But Cullen said the argument “relies on facts that are not alleged in Doe’s complaint.”
Because Doe “never suggest[ed] that all of these individuals were ‘necessarily’ a part of the appeals process, nor d[id] he allege that they were the only employees to whom the statements were disseminated,” the judge couldn’t determine whether privilege applied at this stage of litigation.
Even if the university established a qualified privilege, Doe alleged that the statements were malicious.
“If Doe provides supporting evidence of this allegation after discovery, a jury could conclude that the qualified privilege arguably enjoyed by the University and its employees was lost,” the judge wrote.
Again, Cullen said it was “inappropriate” to consider the privilege defense at this stage in litigation, and he denied the university’s motion to dismiss.
