798 N.E.2d 694 | Ohio Ct. App. | 2003
{¶ 2} On May 15, 2000, Dr. Mousset sought a temporary restraining order against the hospital on claims arising out of the hospital's refusal to renew his contract, which was granted.1 On June 12, 2000, the hospital filed counterclaims against Dr. Mousset, alleging defamation and disparagement, arising out of statements made by Dr. Mousset on his website, http://patientsshouldchoose.com, to the news media, in published newspaper ads, and in letters to physicians and patients. The trial court granted the hospital summary judgment on Dr. Mousset's claims, which Dr. Mousset appealed. Dr. Mousset's appeal, however, was fully dismissed by this court on October 15, 2002. Accordingly, the only issues on appeal concern the trial court's grant of summary judgment to Dr. Mousset against the hospital on its defamation and disparagement counterclaims.
{¶ 3} The hospital raises the following assignments of error:
{¶ 4} "First Assignment of Error:
{¶ 5} "The trial court erred in holding that Dr. Mousset's statements accusing The Toledo Hospital and ProMedica of making anticompetitive deals and of engaging in many anticompetitive business practices were not actionable, defamatory statements of fact, but rather were protected opinions.
{¶ 6} "Second Assignment of Error: *696
{¶ 7} "The trial court erred in holding that Dr. Mousset's statements that the Toledo Hospital and ProMedica unlawfully failed to maintain an open medical staff and thereby risked losing millions of dollars annually were not actionable, defamatory statements of fact, but rather were protected opinions.
{¶ 8} "Third Assignment of Error:
{¶ 9} "The trial court erred in dismissing the Toledo Hospital's disparagement claim."
{¶ 10} Upon thorough review of the record, applicable law, the hospital's arguments on appeal, and the decision of the trial court, we find that the trial court correctly considered the pertinent facts and issues in dispute, correctly applied the law to the facts, and rendered judgment accordingly. We therefore adopt the well-reasoned decision of the trial court as our own. (See Toledo Heart Surgeons, Inc. v. TheToledo Hospital (Nov. 16, 2001), Lucas C.P. No. CI2000-2618, pages 6-17, attached hereto as Appendix A.)
{¶ 11} The hospital's assignments of error are therefore found not well-taken. On consideration whereof, the court finds substantial justice has been done the party complaining and the judgment of the Lucas County Court of Common Pleas is affirmed. The hospital is ordered to pay the court costs of this appeal.
Mark L. Pietrykowski and Arlene Singer, JJ., concur.
Judith Ann Lanzinger, Judge.
{¶ 13} Summary judgment motions are to be resolved in light of the dictates of Civ.R. 56. Civ.R. 56(C) states:
"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of *697 evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, 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 * * *. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
{¶ 14} Summary judgment is not to be entered if it appears that a material fact is genuinely disputed. In order to survive a motion for summary judgment, the nonmoving party must produce evidence on any issue to which that party bears the burden of production at trial. Wing v.Anchor Media, Ltd. of Texas (1991),
{¶ 15} To establish a case of defamation, a plaintiff must show (1) that a false statement of fact was made; (2) that the statement was defamatory (i.e., ruinous to reputation); (3) that the statement was published; (4) that the plaintiff suffered injury as a proximate result of the publication; and (5) that the defendant acted with the required degree of fault in publishing the statement. See Pollock v. Rashid
(1996),
{¶ 16} The Hospital counterclaimants support their opposition to the motion with the affidavits of Ursula Strausbaugh, Dean Vanderhoof, Greg Burton, and Barbara Steele, and the depositions of B.J. Fischer, Mark Luetke, and Dr. Xavier Mousset. They complain of a number of statements — several within their counterclaim and others within their brief in opposition. The statements set forth in the counterclaims' first claim for relief are:
a. The Hospital decided to deny patients the right to life-saving treatment;
b. The Hospital placed politics and power ahead of patient care;
c. The Hospital's President testified that the Hospital is not required to follow due process;
d. The Hospital terminated the privileges of Drs. Mousset and Levy and did not state an official reason. (Paragraph 2 of Counterclaim.)
{¶ 17} The Hospital alleges that these statements were made on an Internet website,2 to the news media, and in published newspaper ads and letters mailed to patients and physicians. In addition, the statements complained of in the brief accompanying defendants' opposition are:
1. The Hospital terminated Dr. Mousset's cardiac surgery privileges; *698
2. The Hospital acted unfairly and violated the Medical Staff Bylaws;
3. The Hospital decided to enter into an exclusive agreement with CSNO for economic and political reasons without regard for patient care;
4. The Hospital illegally "closed" the medical staff and jeopardized its non-profit status, risking the loss of millions of dollars by entering into the agreement;
5. The Hospital administrators, described as bureaucrats, acted unprofessionally and unconscionably; and
6. The Hospital engaged in many illegal, anti-competitive business activities.
{¶ 18} The foregoing statements were not specifically set forth in the answer to interrogatories requested by the plaintiffs. Nor were the following statements mentioned in their brief, where counterclaimants refer to the following statements within patient letters and website:
1. ProMedica "terminated the privileges * * * of Drs. Mousset and Levy."
2. "These privileges were terminated without due process, as required by the medical staff By-laws."
3. "Barbara Steele testified that she is not required to follow basic due process rights as required by the medical staff by-laws."
4. "ProMedica has decided to deny patients' right to life-saving treatment from the practice that allowed Toledo Hospital to be named to the 100 Top Hospital: Cardiovascular Hospitals by Modern Health Care. * * * "
5. "It means that politics and personalities were placed ahead of patient care."
6. "* * * If ProMedica could hand-pick who practices medicine * * * it seriously jeopardizes each physician's freedom to treat patients as they were trained."
{¶ 19} Ursula Strausbaugh's affidavit alleges that Mousset acted with the intent to close down the cardiac surgery program. The Hospital claims that it was injured by this negative publicity and that it incurred significant expense to advance a positive publicity campaign in response. Barbara Steele asserts that the Hospital expended $34,024.30 for this purpose. (Steele aff. ¶ 6.) Defendants also seek $25,000 in punitive damages, alleging that Mousset made these statements with malice.
{¶ 20} The Hospital counterclaimants have offered evidence on the publication of the statements, their allegations of injury as a result, and their allegations of Mousset's acting with intent. The important question, which is one of law for the court, is whether these statements are "defamatory" or whether they are nonactionable opinion statements.
{¶ 21} Section
{¶ 22} Vail, a candidate for the Ohio Senate, had sued the Plain Dealer and a columnist after an allegedly defamatory article about her appeared in the newspaper's Forum section. The article, entitled "Gay-basher takes refuge in the closet," stated that Vail "doesn't like gay people" and that she "added gay-bashing to the repertoire of right-wing, neo-numbskull tactics she is employing * * * in her increasingly distasteful campaign."
{¶ 23} The Supreme Court of Ohio recently determined that constitutional protection for expressed opinion is not limited to media defendants. Wampler v. Higgins (2001),
{¶ 24} The Sixth District Court of Appeals distinguished between fact and opinion in El-Shiekh v. Northwest Ohio Cardiology Consultants (Sept. 15, 2000), Lucas App. No. L-99-1380. There, physicians who were in charge of El-Shiekh's training at Toledo Hospital were found entitled, in the interest of public health and safety, to express concerns or dissatisfaction with his performance. El-Shiekh had acknowledged in deposition that the letters included only subjective opinions regarding his performance. The physician letters were found to be protected opinion.
{¶ 25} Here, Mousset responded throughout his deposition that all the statements being challenged by the Hospital were expressions of "his opinion." Thus, the four Vail factors need to be examined.
{¶ 27} Mousset hired a public relations firm (see deposition of Mark Luetke, president of Funk, Luetke and Skunda) to advocate his position and obtain *701 support. As such, his comments were made as expressions of opinion over perceived unjust treatment. The overall tenor of the remarks may have been emotional and ill advised. They are, however, constitutionally protected opinion; as such, they are not actionable.4
B. Broader Context
{¶ 28} All statements relate either to the Hospital's decision to renew only one of two exclusive cardiac surgical services contracts or to the purported consequences of that decision. As seen in previous rulings in this case, Ohio law upholds exclusive contracts of the type involved here. See, e.g., Holt v. Good Samaritan Hosp. Health Ctr. (1991),
{¶ 32} IT IS ORDERED:
{¶ 33} That the court finds that the TRO should not have been issued on May 16, 2000, in this case, and that the defendants' motion for damages on bond is therefore GRANTED. Plaintiffs shall pay a sum of no more than $75,000 as established by stipulation of the parties or by a hearing on damages on December 20 at 1:30 p.m.; and *703
{¶ 34} IT IS FURTHER ORDERED:
{¶ 35} That plaintiffs' motion for summary judgment on defendants' counterclaims is GRANTED. All counts against plaintiffs are dismissed with prejudice.