416 N.E.2d 651 | Ohio Ct. App. | 1979
Plaintiff-appellant, Donald C. Atkins, D.O., sought staff privileges at Sandusky Memorial Hospital, Sandusky, Ohio. Defendant-appellee, Jack L. Walker, D.O., was a member of the Credentials Committee screening applicants. Dr. Walker, at the request of Dr. Wilbur Cole, the hospital's chief of staff, mailed a letter, which is the subject of this lawsuit, to Dr. Cole.
The letter became part of the record and hearing at the Joint Conference Committee. Dr. Atkins was denied staff privileges. Thereafter, he filed his complaint in the Court of Common Pleas of Erie County seeking compensatory and punitive damages from Dr. Walker for alleged libelous *137
statements contained in Dr. Walker's letter. Dr. Atkins was presented a copy of the letter, but the method, time or manner of receipt is not made clear from the record. After filing an answer, defendant moved for summary judgment. Defendant argued that the action was barred by R. C.
R. C.
"No member or employee of a utilization review committee or tissue committee of a hospital or of a community mental health center or of a utilization committee of a state or local society composed of doctors of medicine or doctors of osteopathic medicine and surgery or doctors of podiatric medicine or of a peer review or professional standards review committee of a state or local society composed of doctors of medicine, doctors of osteopathic medicine and surgery, doctors of dentistry, doctors of optometry, doctors of podiatric medicine, psychologists, or registered pharmacists shall be deemed liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee, if such committee member or employee acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him after reasonable effort to obtain the facts of the matter as to which such action is taken or recommendation is made.
"This section shall also apply to any member or employee of a nonprofit corporation engaged in performing the functions of a peer review or professional standards review committee and shall apply to any member or employee of a hospital board or committee reviewing professional qualifications or activities of its medical staff or applicants for admission thereto."
R. C.
"Proceedings and records of all review committees described in section
Although defendant conceded in his motion that "summary judgment would be improper at this time" because plaintiff alleged defendant's actions were malicious and although defendant admitted in his brief that "the actions or recommendations must be made without malice in order to be entitled to the immunity extended" by R. C.
The trial court, in its judgment entry, made findings of fact and conclusions of law. It commented on various facets of the case and the law and granted summary judgment. Plaintiff thereafter appealed and filed the following assignments of error:
"I. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of appellee for the reason that appellee's letter was communicated to a third party.
"II. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of the appellee for the reason that there are genuine issues as to the material facts of malice and the making of a *139 reasonable effort to obtain the facts forming the basis of the recommendation.
"III. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of appellee for the reason that the defamatory words couched as an opinion does not operate either as a defense to the defamation action, nor as a privileged communication.
"IV. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of appellee for the reason that Section
"V. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of appellee for the reason that Section
"VI. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of appellee for the reason that the legislature did not intend that Sections
"VII. The trial court erred as a matter of law and to the prejudice of the appellant by granting summary judgment in favor of appellee for the reason that Sections
We find that the determinative issue is the application of R. C.
We find that the trial court erred in granting summary judgment on the grounds that the letter in question was inadmissible. Summary judgment is appropriate when:
"* * * [T]he pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *" Civ. R. 56(C).
In the case sub judice, Civ. R. 56(C) was used not to determine *140 that, on the evidence, there was no genuine issue as to any material fact, but that plaintiff's proof would be barred by operation of law. We find that it is premature to make this decision and that it may not be made pursuant to a Civ. R. 56(C) proceeding.
Furthermore, R. C.
Defendant's position is as follows:
"* * * [D]ocuments which are prepared for the express purpose of being considered by a review committee and which form a part of the record of that committee, such as the letter involved in this case, are privileged and are inadmissible."
This is not our interpretation of the statute.
In a case with somewhat similar facts the United States Court of Appeals for the Third Circuit had occasion to interpret R. C.
The court, in Samuelson, supra, at page 553, held that:
"Plaintiff is not precluded from establishing the necessary causal connection between the defamatory matter and his injury by circumstantial evidence or by evidence from deponents which falls outside the purview of the O.R.C. §
Earlier in the Samuelson opinion, supra, at pages 552 to 553, the court found that R. C.
"Plaintiff asserts that O.R.C. §
"The Ohio legislature has, however, concluded, presumably in that state's best interest, that the deliberations of medical review committees should be privileged. As one court has declared `[s]tate legislatures create privileges because a particular relationship is considered so valuable to society that it should be fostered by preserving the confidentiality of the relationship even though evidence which might aid in the quest for truth will be lost.' Baylor v. Mading-Dugan Drug Company,
"No doubt the statutory provisions affect the manner in which plaintiff may develop evidence to support his defamation claim. Plaintiff is not, however, foreclosed from prosecuting his claim with other evidence, both direct and circumstantial." See, also,Young v. Gersten (1978),
For the foregoing reasons, but only to the extent thereof, we find that Assignments of Error Nos. I, II, III, IV and V are well taken. Assignment of Error No. VI is not well taken.
Assignment of Error No. VII is based on the assertion that R. C.
In substance, we find the application of R. C.
The judgment of the Court of Common Pleas of Erie County is reversed and this cause is remanded for further proceedings according to law.
Judgment reversedand cause remanded.
BROWN and CONNORS, JJ., concur.
"2. A qualified privilege protecting the making of defamatory statements is exceeded when the statements are made with `actual malice,' that is, with knowledge that the statements are false or with reckless disregard of whether they were false or not. (New York Times Co. v. Sullivan,
See, also, pages 245 to 246 of the Hahn case, supra, defining a qualified privilege as follows:
"`"A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. * * *"'"
See, also, Holbrook and Dunn, Medical Malpractice Litigation: The Discoverability and Use of Hospitals' Quality Assurance Committee Records, 16 Washburn L. J. 54; Hall, Hospital Committee Proceedings and Reports: Their Legal Status, 1 Am. J. L. Med. 245; Langhenry, Immunity of In-Hospital Staff Committee Members and Confidentiality of Staff Committee Records, 24 Federation of Insurance Counsel, No. 4, page 3. *143