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Sticks and stones
LITIGATION AND LEGISLATION
Sticks and stones Laurance Jerrold, Associate Editor for Litigation and Legislation Brooklyn, NY
H
ancock v Variyam, No. 11-0772 (Sup. Ct. Texas) 2013, describes a defamation suit filed by 1 doctor against another. Specifically, it alerts the reader to the difference between defamation and defamation per se. Dr Variyam was the chief of the Division of Gastroenterology. Dr Hancock was an associate professor under Variyam. A dispute arose between them related to the transfer of patients from Hancock to Variyam when Variyam was on call. Variyam penned a letter to Hancock expressing his “disapproval in the strongest words possible of the lack of professionalism and disregard for patient care that you exhibited this morning.” The letter detailed how Hancock had violated hospital policy on transferring patients. A copy was sent to the chair of the Department of Internal Medicine. Not to be outdone, Hancock responded by sending his own letter to the chair of the department, the dean of the medical school, another colleague in the division, and the accrediting agency reviewing the division's application to continue its gastrointestinal fellowship. In the letter, Hancock resigned his faculty position, stating as a reason Variyam's “reputation for lack of veracity” and “his tendency to deal in half truths, which legally is the same as a lie.” Ultimately, the division's fellowship program lost its accreditation, and subsequently Variyam was removed as the department chair. Variyam sued Hancock for defamation, seeking damages for his removal as chair, loss of reputation, and mental anguish. The trial court determined that Hancock's letter was defamatory per se. The jury awarded Variyam $30,000 for loss of past reputation, $30,000 for loss of future reputation, $15,000 for past mental anguish, $15,000 for future mental anguish, and $85,000 in punitive damages, finding clear and convincing evidence that Hancock's statements were made with malice. When the case was appealed, the finding was affirmed, with the appellate court, noting that “accusations that
Division of Orthodontics and Program Director, Orthodontics and Dentofacial Orthopedics, Department of Dental Medicine, NYU Lutheran, Brooklyn, NY. Am J Orthod Dentofacial Orthop 2017;151:1188-90 0889-5406/$36.00 Ó 2017 by the American Association of Orthodontists. All rights reserved. http://dx.doi.org/10.1016/j.ajodo.2017.03.015
1188
someone is a liar are so obviously hurtful to the person aggrieved that no proof of their injurious character is required to make them actionable.” This appeal to the Supreme Court ensued. The arguments went as follows. Hancock claimed that because his statements did not injure Variyam's reputation as a physician, they could not be deemed defamatory per se. Variyam claimed that they were defamatory because his profession and position both require a truthful reputation regarding patient care, interactions with other health care providers, teaching, research, and publishing. The court defined defamation as “the invasion of a person's interest in her reputation and good name.” Defamation can be per se or per quod. Per se involves statements “that are so obviously hurtful to a plaintiff's reputation that the jury may presume general damages including [those] for loss of reputation and mental anguish.” (General damages are usually noneconomic: eg, loss of reputation or mental anguish; special damages are economic: eg, lost income). Defamation per quod is all other types of defamation that are not per se. The court noted that defamation per se can result in 3 types of damage awards. The first is nominal damages, defined as “a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.” They are awarded when there is no proof that the plaintiff suffered any serious harm as a result of the defamation or for purposes of vindicating a plaintiff's character when the written slight was slight. The second is actual or compensatory damages, which are designed to compensate the injured party not only for the injury to reputation but for any economic losses suffered as a result of the defamation. In this situation, the defamatory language must not have entered the public domain and must have been made with actual malice. The third type of damages is exemplary or punitive. They cannot be awarded when the damages were found to have been nominal and are meant to punish the wrongdoer who exhibited by clear and convincing evidence that he acted in malice. In the triaging of an action in defamation from a legal perspective, first a court must determine that defamation occurred. If it did, was the defamation per
Litigation and legislation
se or per quod? If per se, then what is the level of damages to be awarded? The court noted that it did not believe that Hancock's statements rose to the level of per se because they did not injure his reputation as a physician. Quoting from the case, the court wrote the following: A statement that injures one in his profession is a statement that “ascribes to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession, or of his public or private office, whether honorary or for profit.” Restatement (Second) of Torts §573 (1977).. Comments to the applicable section of the Restatement provide: When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession. Statements that a physician is a drunkard or a quack, or that he is incompetent or negligent in the practice of his profession, are actionable. So too, a charge that a physician is dishonest in his fees is actionable, although an imputation of dishonesty in other respects does not affect his character or reputation as a physician. Disparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff's business or profession. Thus, a statement that a physician consorts with harlots is not actionable per se, although a charge that he makes improper advances to his patients is actionable; the one statement does not affect his reputation as a physician, whereas the other does affect it.
Variyam had opined that Hancock's statement that he lacked veracity and dealt in half truths would affect his relationships with other doctors, hence limiting referrals. The court noted, however, that “the inquiry is not whether a reputation is necessary for a profession. If that were true—because all professions require reputations of some sort—all statements defaming professionals would be defamatory per se. Rather, the proper inquiry is whether a defamatory statement accuses a professional of lacking a peculiar or unique skill that is necessary for the proper conduct of the profession.” Having determined that there was no defamation per se and thus no presumptive damages, the court next addressed the issue of whether compensatory damages for mental anguish should have been awarded. Mental anguish is exhibited when it causes substantial disruption to one's daily routine or a high degree of mental pain and distress as determined by the nature, duration, and severity of the anguish. Evidence of mental anguish
1189
may be found if the defendant required medical attention because of a significant physical manifestation of some type (gastrointestinal issues, an ulcer, and so on), the onset of anxiety or depression that resulted in the need for treatment (mental health care), or corroborating testimony from others that the plaintiff exhibited emotional difficulty, became introspective or withdrawn, or was unable to deal with routine daily life activities. The court determined that Variyam's claims of occasional sleeplessness and mundane daily worries did not rise to the level of emotional distress constituting the award of actual damages. Since no actual damages were incurred, no punitive damages could be awarded. The Supreme Court reversed the appellate court and dismissed the case. COMMENTARY
So, I'm at a professional meeting, and I hear the speaker say that another practitioner is wrong in his assessment of whatever the subject happens to be. His approach is wrong, and the mechanotherapy espoused is not only inefficient but will not effectuate the correction of the condition being discussed. Did he defame the other practitioner? Probably not. People could reasonably conclude that this was merely a difference in professional opinions from both a diagnostic perspective and a therapeutic one. On the other hand, if the language were stronger, something along the lines of “he has no idea what he is talking about, he doesn't understand etiology, doesn't know his you-know-what from his you-knowwhat, and is so incompetent that I wouldn't let him practice on rabid animals”—well, that's a different story. Look, we have plenty of differences in orthodontics. Some of us are 4-on-the-floor guys; others are devout nonextraction expansionists. Some of us are staunch metallicas, whereas other are plasticine people. Some of us are tracers; others are eyeballers. Some are driven by the holy printed word, and others by the artful nature of the beast we are treating. Headgearians vs propulsionists. We are to some degree a fractured profession. Although these differences exist, we cannot allow our skins to be so thin that words and aspersions are allowed to burrow subdermally and begin to fester at our souls. Here's the bottom line. You cannot attack a person's professional reputation, character, or standing that then holds him up to scorn or ridicule in the community in which we work. If he graduated from an accredited program, he's an orthodontist and is to be accorded the respect associated with having done so. You don't like what he has to say? Take the high road. Your mantra should be “this is how I see it, this is what needs to be done, this is how I want to do it, this is how long it
American Journal of Orthodontics and Dentofacial Orthopedics
June 2017 Vol 151 Issue 6
Litigation and legislation
1190
will take, and this is what it will cost.” That's it. No aspersions. Do not malign the professionalism of others publicly. That means do not make defamatory statements to others or in a public forum. Feel free to do it privately to the guy's face. If you can't do that, then as Archie Bunker said to Edith, “stifle yourself.” There is a fine line between insulting or offensive verbiage and downright malicious commentary designed to evoke ire and scorn from those exposed to the discourse. Blatantly false aspersions or those that exhibit
June 2017 Vol 151 Issue 6
reckless disregard for the truth are to be assiduously avoided. Although truth and privilege are valid defenses to claims of slander (spoken defamation) or libel (written defamation), they both are burdensome in terms of time, cost, and angst, and occasionally boomerang back in such a way as to conjure up the phrase: even if you win—you lose. To turn an old saw, sticks and stones may break my bones, but words may get you in deeper than you ever thought.
American Journal of Orthodontics and Dentofacial Orthopedics
Sticks and stones Laurance Jerrold, Associate Editor for Litigation and Legislation Brooklyn, NY
H
ancock v Variyam, No. 11-0772 (Sup. Ct. Texas) 2013, describes a defamation suit filed by 1 doctor against another. Specifically, it alerts the reader to the difference between defamation and defamation per se. Dr Variyam was the chief of the Division of Gastroenterology. Dr Hancock was an associate professor under Variyam. A dispute arose between them related to the transfer of patients from Hancock to Variyam when Variyam was on call. Variyam penned a letter to Hancock expressing his “disapproval in the strongest words possible of the lack of professionalism and disregard for patient care that you exhibited this morning.” The letter detailed how Hancock had violated hospital policy on transferring patients. A copy was sent to the chair of the Department of Internal Medicine. Not to be outdone, Hancock responded by sending his own letter to the chair of the department, the dean of the medical school, another colleague in the division, and the accrediting agency reviewing the division's application to continue its gastrointestinal fellowship. In the letter, Hancock resigned his faculty position, stating as a reason Variyam's “reputation for lack of veracity” and “his tendency to deal in half truths, which legally is the same as a lie.” Ultimately, the division's fellowship program lost its accreditation, and subsequently Variyam was removed as the department chair. Variyam sued Hancock for defamation, seeking damages for his removal as chair, loss of reputation, and mental anguish. The trial court determined that Hancock's letter was defamatory per se. The jury awarded Variyam $30,000 for loss of past reputation, $30,000 for loss of future reputation, $15,000 for past mental anguish, $15,000 for future mental anguish, and $85,000 in punitive damages, finding clear and convincing evidence that Hancock's statements were made with malice. When the case was appealed, the finding was affirmed, with the appellate court, noting that “accusations that
Division of Orthodontics and Program Director, Orthodontics and Dentofacial Orthopedics, Department of Dental Medicine, NYU Lutheran, Brooklyn, NY. Am J Orthod Dentofacial Orthop 2017;151:1188-90 0889-5406/$36.00 Ó 2017 by the American Association of Orthodontists. All rights reserved. http://dx.doi.org/10.1016/j.ajodo.2017.03.015
1188
someone is a liar are so obviously hurtful to the person aggrieved that no proof of their injurious character is required to make them actionable.” This appeal to the Supreme Court ensued. The arguments went as follows. Hancock claimed that because his statements did not injure Variyam's reputation as a physician, they could not be deemed defamatory per se. Variyam claimed that they were defamatory because his profession and position both require a truthful reputation regarding patient care, interactions with other health care providers, teaching, research, and publishing. The court defined defamation as “the invasion of a person's interest in her reputation and good name.” Defamation can be per se or per quod. Per se involves statements “that are so obviously hurtful to a plaintiff's reputation that the jury may presume general damages including [those] for loss of reputation and mental anguish.” (General damages are usually noneconomic: eg, loss of reputation or mental anguish; special damages are economic: eg, lost income). Defamation per quod is all other types of defamation that are not per se. The court noted that defamation per se can result in 3 types of damage awards. The first is nominal damages, defined as “a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.” They are awarded when there is no proof that the plaintiff suffered any serious harm as a result of the defamation or for purposes of vindicating a plaintiff's character when the written slight was slight. The second is actual or compensatory damages, which are designed to compensate the injured party not only for the injury to reputation but for any economic losses suffered as a result of the defamation. In this situation, the defamatory language must not have entered the public domain and must have been made with actual malice. The third type of damages is exemplary or punitive. They cannot be awarded when the damages were found to have been nominal and are meant to punish the wrongdoer who exhibited by clear and convincing evidence that he acted in malice. In the triaging of an action in defamation from a legal perspective, first a court must determine that defamation occurred. If it did, was the defamation per
Litigation and legislation
se or per quod? If per se, then what is the level of damages to be awarded? The court noted that it did not believe that Hancock's statements rose to the level of per se because they did not injure his reputation as a physician. Quoting from the case, the court wrote the following: A statement that injures one in his profession is a statement that “ascribes to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession, or of his public or private office, whether honorary or for profit.” Restatement (Second) of Torts §573 (1977).. Comments to the applicable section of the Restatement provide: When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession. Statements that a physician is a drunkard or a quack, or that he is incompetent or negligent in the practice of his profession, are actionable. So too, a charge that a physician is dishonest in his fees is actionable, although an imputation of dishonesty in other respects does not affect his character or reputation as a physician. Disparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff's business or profession. Thus, a statement that a physician consorts with harlots is not actionable per se, although a charge that he makes improper advances to his patients is actionable; the one statement does not affect his reputation as a physician, whereas the other does affect it.
Variyam had opined that Hancock's statement that he lacked veracity and dealt in half truths would affect his relationships with other doctors, hence limiting referrals. The court noted, however, that “the inquiry is not whether a reputation is necessary for a profession. If that were true—because all professions require reputations of some sort—all statements defaming professionals would be defamatory per se. Rather, the proper inquiry is whether a defamatory statement accuses a professional of lacking a peculiar or unique skill that is necessary for the proper conduct of the profession.” Having determined that there was no defamation per se and thus no presumptive damages, the court next addressed the issue of whether compensatory damages for mental anguish should have been awarded. Mental anguish is exhibited when it causes substantial disruption to one's daily routine or a high degree of mental pain and distress as determined by the nature, duration, and severity of the anguish. Evidence of mental anguish
1189
may be found if the defendant required medical attention because of a significant physical manifestation of some type (gastrointestinal issues, an ulcer, and so on), the onset of anxiety or depression that resulted in the need for treatment (mental health care), or corroborating testimony from others that the plaintiff exhibited emotional difficulty, became introspective or withdrawn, or was unable to deal with routine daily life activities. The court determined that Variyam's claims of occasional sleeplessness and mundane daily worries did not rise to the level of emotional distress constituting the award of actual damages. Since no actual damages were incurred, no punitive damages could be awarded. The Supreme Court reversed the appellate court and dismissed the case. COMMENTARY
So, I'm at a professional meeting, and I hear the speaker say that another practitioner is wrong in his assessment of whatever the subject happens to be. His approach is wrong, and the mechanotherapy espoused is not only inefficient but will not effectuate the correction of the condition being discussed. Did he defame the other practitioner? Probably not. People could reasonably conclude that this was merely a difference in professional opinions from both a diagnostic perspective and a therapeutic one. On the other hand, if the language were stronger, something along the lines of “he has no idea what he is talking about, he doesn't understand etiology, doesn't know his you-know-what from his you-knowwhat, and is so incompetent that I wouldn't let him practice on rabid animals”—well, that's a different story. Look, we have plenty of differences in orthodontics. Some of us are 4-on-the-floor guys; others are devout nonextraction expansionists. Some of us are staunch metallicas, whereas other are plasticine people. Some of us are tracers; others are eyeballers. Some are driven by the holy printed word, and others by the artful nature of the beast we are treating. Headgearians vs propulsionists. We are to some degree a fractured profession. Although these differences exist, we cannot allow our skins to be so thin that words and aspersions are allowed to burrow subdermally and begin to fester at our souls. Here's the bottom line. You cannot attack a person's professional reputation, character, or standing that then holds him up to scorn or ridicule in the community in which we work. If he graduated from an accredited program, he's an orthodontist and is to be accorded the respect associated with having done so. You don't like what he has to say? Take the high road. Your mantra should be “this is how I see it, this is what needs to be done, this is how I want to do it, this is how long it
American Journal of Orthodontics and Dentofacial Orthopedics
June 2017 Vol 151 Issue 6
Litigation and legislation
1190
will take, and this is what it will cost.” That's it. No aspersions. Do not malign the professionalism of others publicly. That means do not make defamatory statements to others or in a public forum. Feel free to do it privately to the guy's face. If you can't do that, then as Archie Bunker said to Edith, “stifle yourself.” There is a fine line between insulting or offensive verbiage and downright malicious commentary designed to evoke ire and scorn from those exposed to the discourse. Blatantly false aspersions or those that exhibit
June 2017 Vol 151 Issue 6
reckless disregard for the truth are to be assiduously avoided. Although truth and privilege are valid defenses to claims of slander (spoken defamation) or libel (written defamation), they both are burdensome in terms of time, cost, and angst, and occasionally boomerang back in such a way as to conjure up the phrase: even if you win—you lose. To turn an old saw, sticks and stones may break my bones, but words may get you in deeper than you ever thought.
American Journal of Orthodontics and Dentofacial Orthopedics