Odom v. Fairbanks Memorial Hospital

FABE, Justice,

concurring in part and dissenting in part.

I disagree with the court’s view that Odom has alleged a prima facie case of defamation. Although the court is correct in its determination that Fairbanks Memorial Hospital should not be liable for its report to the National Practitioner Data Bank, the court also concludes that “Odom’s defamation claim asserts many communications other than the falsity of the stated reasons reported] to the Data Bank” and thus “alleges a prima facie case of defamation.” It is with this conclusion that I disagree.

Odom’s complaint contains a broad charge that FMH engaged in a pattern of communicating “false and fraudulent information against the Plaintiff’ and avers that these communications “occurred on numerous occasions by United States mail, telephone, in person, and through other forms of fraudulent communications.” But the only specific instances of defamation described in the complaint are FMH’s report to the National Practitioner Data Bank, which this court has disallowed as a basis for a claim of defamation, and Odom’s own report of his predicament to insurance companies and lending institutions. The question presented to the superior court in the motion to dismiss was whether these latter instances of “self-publication” could form the basis of a defamation claim. The superior court decided that they could not, dismissing the defamation claim on the basis that “the statements were not false or defamatory because Odom had lost his hospital privileges. Also, the statements were not concerning another, as Odom relayed the information about his predicament.”

In his briefing before us on appeal, Odom does not contest the superior court’s conclusion that “Odom has -self-published, which is not grounds for a defamation action.” Instead, he argues that FMH’s transmission of information about his terminated privileges to the National Practitioner Data Bank forms the basis of his defamation claim:

[DJefendants have uttered and published false and defamatory statements about plaintiff in writing and, upon information and belief, orally, with respect to plaintiffs *134conduct, employment, career, and fitness to practice medicine....
In support of this allegation, Odom alleged the following:
Gingerich sent notification of Odom’s termination to the U.S. National Practitioner Data Bank as mandated by 42 U.S.C. § 11111. Gingerich further characterized the reason for Odom’s dismissal in this notification as “incompetence/malpractice/negligence.” This defamed Odom nationally to all future possible hospital practice positions.

(Emphasis in original.)

Odom has pointed to no other instance of defamation in his complaint1 or his briefing to this court. The only issue that he has raised and discussed is the report to the National Practitioner Data Bank. Because we resolve this issue against Odom, I disagree with the draft’s conclusion that other claims of defamation survive.

APPENDIX A

Odom’s complaint reads in part:

2. This action arises out of Defendants’ combination and conspiracy to unlawfully restrain trade and harm competition in operating room services and anesthesiology services, combination and conspiracy to dominate the relevant market for operating room services and anesthesiologieal [sic] services, and group boycott, all having substantial and injurious effects upon interstate commerce. This action also arises out of Defendants’ open-ended and continuous pattern and scheme to defraud, discharge, defame and compete unfairly with Plaintiff in connection with Plaintiffs professional career in general, Plaintiffs professional affiliation with defendants in particular, Plaintiffs plans to develop an outpatient surgery center, which pattern and scheme involves multiple victims, including the general public, has already extended from at least October 5, 1992 to date, and threatens to continue.
3. As more fully set forth below, upon information and belief, defendant anesthesiologists Jerry A. Perisho, M.D., Hoi P. Lee, M.D., Randall K. McGre-gor, M.D., Steve E. Mandil, M.D., Lawrence W. Stinson, Jr., M.D., and William F. Stoddard, M.D., as well as Defendant Anesthesia Associates, Inc., with the knowledge, participation, and acquiescence of Defendants Fairbanks Memorial Hospital (“FMH” or the “Hospital”), Lutheran Health Systems (“LHS”), Western Health Network CWHN”), FMH Administrator James H. Gingerich, Assistant Administrator Susan McLane, FMH Quality Assurance Manager Linda Smith, attorney Ronald L. Bliss, Danny R. Robinette, M.D.[,] as well as with other unnamed co-conspirators, who include physicians within the Hospital, and with malice and intent to injure Plaintiff; (a) engaged in a pattern of conduct pursuant to which they improperly removed Plaintiff from the FMH medical staff in bad faith and reported this act to ' the United States National Practitioner Databank, thus preventing Plaintiff from pursuing his livelihood and practicing his specialty in any hospital[;] (b) fabricated false claims and exaggerated other claims against plaintiff on quality of care issues, used discriminatory criteria in quality of care determinations, and acted in secrecy to further their personal interests rather than those of the patients of the Hospital; (c) subverted the mandated Quality Assurance and Peer Review mechanisms, corrupted the Hospital medical and administrative processes and controls, violated the Hospital Medical Staff Bylaws; (d) concealed the real *135anti-competitive motives for discharging and replacing Plaintiff, communicated false and fraudulent information on repeated occasions within and outside FMH, within and outside the state, to, inter alia, medical staff, hospital administrators and state agencies regarding Plaintiffs performance; (e) caused Plaintiff to be discharged from the FMH medical staff by improperly influencing FMH Medical Staff procedures in-bad faithQ] (f)'fabricated additional allegations against plaintiff after his termination from the FMH medical staff in an attempt to further alter the record and give credibility to their actions.
4. The communication of false and fraudulent information against the Plaintiff occurred on numerous occasions by United States mail, telephone, in person, and through other forms of fraudulent communications and activities.
5. Acting under [the] color of Federal and State law, the Defendants álso reported, maliciously and in bad faith, these false and fraudulent allegations as the purported basis for their action to other hospitals and State agencies, the U.S. National Practitioner Databank, and triggered a government investigation against Plaintiff. This action was part of a successful effort to utilize a sham to exclude plaintiff from the medical,staff of the Hospital, and from anesthesiologieal [sic] practice throughout the State of Alaska and throughout the United States of America for anti-competitive purposes.
7.Defendant FMH and Anesthesia Associates, Inc., Lee, McGregor, Perisho, Mancill, Stinson, and Stoddard achieved their anti-competitive objective of maintaining monopoly status in a geographically isolated market area for both the Fairbanks Memorial Hospital and the contracted FMH anesthesiologists by successfully discouraging the development of a competing surgery center by financially incapacitating and ruining the reputation of its developer and promoter.
8. Such conduct-has harmed and continues to harm and will continue to harm in the future both consumers of anesthesiology care and operating room services in the-Fairbanks North Star Borough area.
9. Absent the successful development of a surgery center, Defendants have precluded Plaintiff from the operating room practice of anesthesiology at FMH or elsewhere by a fabricated and pretextual basis. Defendants have maliciously, willfully and inténtionally ’defamed plaintiff by fabricating instances of plaintiff’s misconduct, exaggerating other claims against Plaintiff, and reporting such false and defamatory statements verbally and in writing ■ to the U.S. National Practitioner Databank and to state regulatory authorities, all in furtherance of their scheme.
15. Fairbanks Memorial Hospital (“FMH”) is a non-profit hospital, located in Fairbanks, Alaska, is authorized to do business in Alaska, and is the only full service hospital in Alaska north of the Alaska (mountain) Range.
25. FMH is presently the sole civilian provider of operating room services in the Fairbanks market area.
35. As soon as FMH, LHS and WHN understood that Plaintiff Odom was or could become a competitive threat to FMH and its monopoly of operating room services, Defendant Ginge-rich conspired with Defendants Anesthesia Associates, Inc., Lee, McGregor, Perisho, and Mancill, and later with Defendants Stinson and Stoddard, all of whom share in a parallel monopoly for the provision of related services, to embark on a course of action to discredit Odom and ultimately to remove from him his livelihood, through impugning his medical competence. Hence, FMH, *136WHN, LHS and the Defendants Anesthesia Associates, Inc., Lee, McGregor, Perisho, Mancill, Stinson, and Stoddard in complicity with Defendants Bliss, McLane, Smith, and Robinette sought to remove Odom’s financial capacity in order to prevent him from pursuing development of the competing enterprise and to prevent him from seeking judicial redress.
50. When the Defendants Anesthesia Associates, Inc., Lee, McGregor, Per-isho, and Mancill learned of Odom’s decision, they contacted the Chief of Staff of FMH, Keith Gianni, M.D., and requested that Odom’s hospital privileges to practice medicine at FMH be immediately suspended, without notice or hearing. Defendants Anesthesia Associates, Inc., Lee, McGregor, Perisho, and Mancill represented to Dr. Gianni that Odom’s conduct was disruptive and impaired patient care. Defendants Anesthesia Associates, Inc., Lee, McGregor, Perisho, and Mancill also represented to Dr. Gianni that there were quality assurance issues which also warranted an immediate suspension of privileges. Based on these representations, all of which were false, the Chief of Staff did, in fact, enter an emergency order suspending Odom’s privileges to practice at FMH, effective immediately....
52. Within twenty-four hours after requesting FMH’s Chief of Staff to immediately suspend Odom’s hospital privileges, Defendants Anesthesia Associates, Inc., Lee, McGregor, Perisho, Mancill, and Stinson met, in secret with FMH administrator Gingerich, FMH Outpatient Services administrator Susan McLane, and FMH Quality Manager Linda Smith, excluding Odom’s participation, and agreed among themselves to:
(a) preclude Odom from practicing anesthesiology at FMH under the terms and provisions of the 1993 Anesthesia Agreement and future agreements;
(b) preclude Odom from receiving a pro-rated share of the anesthesia practice at FMH;
(c) disparage Odom’s professional reputation by innuendo,- accusations and false statements relative to Odom’s professional competence, thusly preventing Odom from pursuing his outpatient surgery center project....
(d) missuse the peer review process to advance personal and corporate anti-competitive ends.
73. A set of accusations were prepared under the guidance of attorney Bliss. These accusations deliberately exaggerated the severity of the purported incidents and mischaracterized and defamed Plaintiff. Further, the Defendants exaggerated the severity of the incidents to justify their request to the Medical Staff Executive Committee for Formal Corrective Action. Besides the five eases reviewed by the FMH Anesthesia Section quality assurance committee, the case informally resolved by Surgery Department QA committee in January, 1993 is added in to make a total of six cases referenced in the final report.
113. Gingerich sent notification of Odom’s termination to the U.S. National Practitioner Data Bank as mandated by 42 USC 11111. (NPDB process date 9/16/94) Gingerich further characterized the reason for Odom’s dismissal in this notification as “incompetence/malpractice/negligence.” This defamed Odom nationally to all future possible hospital practice positions ....
119. In addition, Bliss made a mischarac-terization of Odom’s practice history. Bliss made a blanket, false and un*137substantiated statement that nine locations of previous practice gave damning professional references. All laudatory reports were intentionally omitted. Bliss also made unsubstantiated intimations that where information was lacking, it was therefore also damning. This false and misleading practice history was ■presented to the PMH Credentials Committee as well as the Ad Hoe Committee. Bliss’ statements were also a significant factor in the May 10,1995 rejection.
125. The statements contained in these various communications were false and defamatory, and were uttered and published with malice, intent to injure plaintiff and his reputation and career, and with intent to restrain trade and monopolize the relevant market by injuring and impairing competition.
126. Upon information and belief, in addition to the writings referred to herein, defendants orally defamed plaintiff by uttering false and defamatory statements of the- type alleged to prospective business partners, investors and others.
135. The termination of plaintiffs staff privileges and membership at Fairbanks Memorial Hospital resulted in his exclusion from the practice of anesthesiology. Plaintiffs capability to continue his surgery center project has been severely hampered by his loss of financial capacity and reputation. If successful in preventing Plaintiff from completing his project, • Defendants will have deprived many individual patients and referring .physicians of access .to .alternative operating room services for a substantial period of time.
■ 146. Paragraphs 1 through 46 and 65 through 145 are repeated and real-leged as if set forth in full herein.
147. Defendants, as originators of the wrongful termination and withdrawal of privileges, and other defamatory conduct and statements set forth herein, knew that plaintiff would be compelled to disclose the contents of such conduct and statements to third parties in connection with applications for hospital medical staff privileges, malpractice insurance, membership in professional organizations, business loan applications, stock offerings, and related purposes.
148.' ’ Plaintiff in fact has been compelled tó disclose the defamatory conduct and statements made about him to third parties in connection with discussions for employment, malpractice insurance, licensing, business loans, and related purposes, and will be compelled to make further disclosures of this type in the future.
149. The defamatory .statements set forth herein were motivated by Defendants’ malice, ill will, personal spite, or in the alternative by defendants’ culpable recklessness or gross negligence.
150. By reason of the foregoing, Defendants have uttered and published false and defamatory statements about Plaintiff in writing and, upon information and belief, orally, with respect to Plaintiffs conduct, employment, career, and fitness to practice medicine, and have compelled Plaintiff to repeat Defendants’ defamation to others in connection with his professional career, all damaging plaintiff.'

. The paragraphs of the complaint cited by the court do not support its conclusion that Odom has alleged other defamatory statements. Paragraphs 146-150 contain the "self-publication” claims, and paragraphs 5 and 9 allege malicious reporting to the National Practitioner Data Bank.

Paragraphs 3 and 50 do not relate to defamation at all, instead alleging that the hospital wrongfully revoked his hospital privileges, "fabricat[ing] false claims and exaggerat[ing] other claims against [Odom] on quality of care issues.”