SMITH Et Al. v. DiFRANCESCO
341 Ga. App. 786
| Ga. Ct. App. | 2017Background
- Randy Smith was the sole shareholder and a licensed physician of CG Physicians, which operated a Cenegenics Atlanta clinic; he stopped seeing patients in 2013 and left Cenegenics in March 2014.
- After leaving, Smith emailed at least some CG Physicians patients offering his anti‑aging services; some patients contacted Dr. Lisa DiFrancesco with concerns.
- DiFrancesco authorized Cenegenics to send a letter to CG Physicians patients stating, among other things, that Smith was "no longer authorized to offer the Cenegenics Program" and that "a lot has changed over the last year since [Dr. Smith] last had the ability to practice medicine."
- Smith sued DiFrancesco for defamation (libel per se), seeking damages and equitable relief; the trial court granted summary judgment for DiFrancesco, finding the statement was not defamatory per se and was privileged.
- The Court of Appeals reviewed de novo and reversed, holding a genuine issue of material fact existed as to both whether the statement was libelous per se and whether any conditional privilege applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the letter contained statements defamatory per se | Smith: The phrase that he "last had the ability to practice medicine" on its face charges lack of capacity/licensure and injures his professional reputation, so libel per se | DiFrancesco: The phrase referred only to Smith's ability to practice with Cenegenics, not his general medical ability | Court: The statement’s plain meaning suggests loss of ability/licensure and is defamatory per se; no innuendo required — trial court erred |
| Whether the communication was conditionally privileged | Smith: DiFrancesco acted without verifying truth, motivated by self‑interest, and recipients included Smith’s practice patients, so privilege is defeated | DiFrancesco: She acted in good faith to protect patients and limited distribution to those contacted by Smith | Court: Facts are disputed on good faith, scope, and recipients; privilege is a jury question — summary judgment improper |
| Whether damages must be proved separately | Smith: N/A (claimed libel per se, which infers damages) | DiFrancesco: N/A | Court: Because statement is libel per se, damages are presumed; remand for further proceedings |
| Whether actual malice must be addressed on appeal | Smith: Argued actual malice (punitive damages) | DiFrancesco: N/A on appeal | Court: Declined to decide actual malice because reversal on summary judgment makes it premature |
Key Cases Cited
- Mathis v. Cannon, 276 Ga. 16 (defamation elements)
- Zarach v. Atlanta Claims Assn., 231 Ga. App. 685 (libel per se vs. per quod; rely on words themselves)
- Cottrell v. Smith, 299 Ga. 517 (defamatory statements requiring extrinsic proof are not per se)
- Bellemead, LLC v. Stoker, 280 Ga. 635 (look to plain import of words)
- Smith v. Stewart, 291 Ga. App. 86 (consider natural and obvious meanings)