dissenting.
Because the majority’s holding stretches precepts underlying Georgia’s “invited libel” doctrine and thereby avoids application of rules governing this State’s qualified immunity doctrine, I am compelled to dissent.
I cannot go along with the majority’s logic that Dr. Gioia’s harsh views and accusations against Nurse Luckey were not legally “published” because the doctor directed them to a Hospital administrator. The majority’s holding is founded on cases which invoke “public policy” to justify the rule that defamatory comments are not actionable when rendered during an employer’s investigation of an employee’s job performance. See Fly v. Kroger Co., 209 Ga. App. 75, 76 (1) (432 SE2d 664); Lepard v. Robb, 201 Ga. App. 41, 42 (1) (410 SE2d 160); Kenney v. Gilmore, 195 Ga. App. 407, 408 (1) (393 SE2d 472); Williams v. Cook, 192 Ga. App. 811 (1) (386 SE2d 665); Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878); Monahan v. Sims, 163 Ga. App. 354, 357 (1) (294 SE2d 548), and LuAllen v. Home Mission Bd. &c., 125 Ga. App. 456, 459 (2) (188 SE2d 138).4 The problem I see in applying this rule in the case sub judice is that the Hospital was not investigating Luckey’s job performance when its administrator asked Gioia to respond to the nurse’s report that the doctor had “dumped” a *435pregnant and medically unstable 15-year-old emergency room patient.5 The Hospital’s investigation focused only on Gioia’s alleged violation of hospital policy and federal law — The Emergency Medical Treatment & Active Labor Act, 42 USC § 1395dd. Punishing Luckey for reporting what she believed was a violation of these standards by cutting off her right for a jury to hear her defamation claim is, in my view, not good “public policy.” On the contrary, such policy undermines the intent and purpose of 42 USC § 1395dd.
I believe that Georgia’s “public policy” is best served, under the circumstances in the case sub judice, by allowing a jury to resolve the parties’ opposing claims. Specifically, Gioia’s defense should not be governed by the maxim, “Volenti non fit injuria,” but should be measured under appropriate rules governing Georgia’s qualified immunity doctrine — which requires proof that Gioia uttered his harsh words against Luckey in good faith and with an interest to be upheld; that the doctor’s statements were properly limited in scope; that the doctor uttered the words during a proper occasion, and that he published them only to proper persons. See Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822 (67 SE2d 600). Applying this test in the case sub judice, I find the content, tone and potential self-serving motive behind Gioia’s letter against Luckey sufficient to raise genuine issues of material fact as to whether the doctor acted maliciously in transmitting the letter to the Hospital’s administrator. I believe that saying otherwise chills any incentive for hospital employees to report infractions under federal law and private policies that are designed to protect helpless (and possibly disadvantaged) emergency room patients.
Moreover, I am in full agreement with and concur fully with Judge Eldridge’s dissent.
These decisions appear to evolve from the common law maxim, ‘“Volenti non fit injuria’ (meaning that to which a person assents is not in law an injury)[. That is, a party injured, even by a maliciously false report,] can not complain where ... it is shown that he ... invited or brought upon himself what he claims is a defamation, made to one who has been placed, as it were, in his own shoes.” Beck v. Oden, 64 Ga. App. 407, 411 (13 SE2d 468). The Supreme Court referred to the precept as “invited libel. King v. Masson, 148 Ga. App. 229 (A) (1) (251 SE2d 107) (1978); Beck v. Oden, [supra].” Ga. Power Co. v. Busbin, 249 Ga. 180, 181 (289 SE2d 514).
Indeed, Hospital Administrator Keir and the Hospital’s human resources director, Belinda Campbell, deposed that Luckey’s discharge was not related to Gioia’s response to her report of the July 10, 1995 emergency room incident.