Virginia Lawyers Weekly VA Lawyers Weekly
Where one cardiothoracic surgeon allegedly stated that another cardiothoracic surgeon “misread” or “failed to recognize” the findings on the patient’s echocardiogram before beginning surgery, a jury will decide if the statements were false.
Background
A cardiothoracic surgeon, Dr. Barbara L. Robinson, sued another cardiothoracic surgeon, Dr. John Mark Williams, alleging that his remarks about her performance during an aborted surgery defamed her. On summary judgment, the district court determined that Williams’s statements — that Robinson “misread” or “failed to recognize” the findings on the patient’s echocardiogram before beginning surgery — were not false, as Robinson admitted she did not read the echocardiogram at all before operating. The district court therefore concluded the statements could not be actionable under North Carolina law.
Analysis
To prove defamation under North Carolina law, which applies here, Robinson must show that Williams made “[1] false, [2] defamatory statements [3] of or concerning [Robinson], [4] which were published to a third person.” Only the first element is at issue on appeal.
“[T]he issue of falsity … focuses on substantial truth.” “Thus, a plaintiff must establish that ‘the sting,’ the aspect causing injury to the plaintiff’s reputation, is materially false.” In making this assessment, the court considers the allegedly defamatory statement and the facts implied by that statement “within their full context.”
Robinson offers two alternative interpretations of these statements that a jury, believing her evidence, could reasonably draw and conclude were false. First, the accusation that Robinson misread or misapprehended the TEE results implies that she read those results in the first place, which she did not.
Williams responds that the difference between “misread” and “did not read” is immaterial. In his view, the injurious sting of either statement is that Robinson performed a sternotomy on the patient without knowing whether the intraoperative TEE showed severe or moderate aortic insufficiency, which is true.
But a jury could interpret the gist of that statement differently, and this court thinks it is premature to decide otherwise. Saying that a person has misread something communicates not only that she read it, but that she did so incorrectly — implying, in this case, that she lacks skill in applying her medical judgment. A jury might reasonably conclude that this accusation constitutes a distinct critique of Robinson’s professional competence.
A statement like “Robinson did not read the TEE,” by contrast, says nothing about her ability to do so or about her judgment to proceed with a sternotomy despite supposedly having viewed the concerning TEE results. In other words, Williams’s assertion that Robinson misread the TEE — a statement that all concede is literally false — may be viewed as “materially false” as well. Use of the term “misread,” in this context, could “cause the [statement] to produce a different effect on the audience than would have been produced had the truth of the matter been spoken.”
Second, Williams’s statements that Robinson “misread” and “failed to recognize” the findings of the intraoperative TEE before the sternotomy could be understood to imply that Robinson had an obligation to read and understand the TEE before beginning the surgery, which she failed to fulfill. Whether such an obligation exists is hotly disputed in this case.
Vacated and remanded.
Concurring opinion
Traxler, J., concurring:
In my view, the dispute about the existence and scope of Robinson’s duty regarding the intraoperative TEE precludes summary judgment. Williams’ attribution of the unnecessary surgery to Robinson’s misreading of the TEE and her failure to recognize the findings of the TEE must be understood as accusing Robinson of breaching her duties as a cardiothoracic surgeon.
If Robinson did not read the TEE and had no duty to do so, then Williams’ statements are false and therefore support her claim of defamation. Likewise, if Robinson did not have a duty to inquire about the results of the TEE, her failure to do so before proceeding with the surgery was not improper and was not the cause of the unnecessary surgery.
Accordingly, because there are genuine issues of material fact about whether Robinson had a professional duty to interpret the intraoperative TEE or to inquire about the results before commencing the surgery, the district court erred by granting summary judgment in favor of Dr. Williams.
Robinson v. Williams, Case No. 20-1636, Feb. 1, 2023. 4th Cir. (Rushing), from EDNC at Greenville (Flanagan). John West Gresham for Appellant. Laura Howard McHenry for Appellee. VLW 023-2-028. 15 pp.
