Author: Chuck Pilcher, MD FACEP (Editor, Med Mal Insights) // Reviewers: Alex Koyfman, MD (@EMHighAK) and Brit Long, MD (@long_brit)
Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFLis to improve patient safety, educate physicians, and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here.
Chuck Pilcher, MD, FACEP
Editor, Med Mal Insights
Your colleague is an “idiot.” Is that your diagnosis or your opinion?
Use caution with defamatory language.
Facts: For undisclosed reasons Dr. A administers tPA to a patient with an intra-cerebral hemorrhage, resulting in an unfortunate outcome. When Dr. B learns of this, he is overheard angrily saying to a colleague “Dr. A is an idiot… We can’t let him continue working here.” Word gets back to Dr. A. He contacts an attorney and files a defamation lawsuit against Dr. B.
Plaintiff: The patient’s hemorrhage was not obvious at the time. I am not an “idiot.” [Definition: A person without understanding since birth and is unlikely, according to the law, to attain any. Black’s Law Dictionary]
Defense: “Idiot” is just a figure of speech, an opinion. [An utterly foolish or senseless person. Dictionary.com] Defamation requires that a statement be provably false.
Result:
- Dr. B filed a motion for summary judgement (MSJ) which was granted in Dr. B’s favor by the trial court judge.
- Dr. A appealed.
- The Appeals Court upheld the lower court’s MSJ and dismissed the case.
- They ruled that – in context – Dr. B’s angry statement did not suggest that Dr. A met the legal definition of “idiot” (i.e., he did not suffer from an “extreme intellectual disability”).
- Dr. B was only expressing his opinion that Dr. A acted foolishly.
- A subjective assessment like this cannot be proven true or false.
- Therefore, the claim was not actionable as a matter of law, even if it can cause reputational harm.
- Dr. B’s angry tone and use of the term “idiot” would not lead a reasonable listener to believe that he was making a statement of fact.
Takeaways:
- Avoid a defamation lawsuit by not disparaging a colleague [or a patient], especially when your comment can be overheard.
- Check your Thesaurus for synonyms other than “idiot” before using defamatory language.
- In the current environment of misinformation, be certain that the facts are on your side before disagreeing with a colleague.
“Though a physician may be blamed unjustly, it is just as common that he be given more credit than he deserves. So he has not, on the whole, any right to complain.”
Dr. James Jackson, 1777-1867
The first physician at Massachusetts General Hospital, 1821
