Present: All the Justices
ROSA FUSTE, M.D., ET AL.
v. Record No. 020628 OPINION BY JUSTICE CYNTHIA D. KINSER
January 10, 2003
RIVERSIDE HEALTHCARE ASSOCIATION,
INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
In this appeal, the primary issue is whether alleged
defamatory communications are statements of fact or
expressions of opinion. Because we conclude that certain
of the alleged statements contain provably false factual
connotations while other alleged statements are dependent
upon the speaker’s viewpoint, we will reverse, in part, and
affirm, in part, the judgment of the circuit court
sustaining a demurrer.
MATERIAL FACTS AND PROCEEDINGS
The circuit court decided this case on a demurrer.
Consequently, we recite the facts as alleged in the
pleadings. McMillion v. Dryvit Systems, Inc., 262 Va. 463,
465, 552 S.E.2d 364, 365 (2001). However, since the court
sustained a demurrer to a second amended motion for
judgment, which is complete and does not incorporate by
reference allegations in the prior motions for judgment, we
address only the allegations presented in the second
amended motion for judgment. Delk v. Columbia/HCA
Healthcare Corp., 259 Va. 125, 129, 523 S.E.2d 826, 829
(2000). In doing so, we consider not only the facts stated
but also those that are reasonably and fairly implied in
the light most favorable to the nonmoving parties, Rosa M.
Fuste, M.D., and Tien L. Vanden Hoek, M.D., the plaintiffs.
McMillion, 262 Va. at 465, 552 S.E.2d at 365; Yuzefovsky v.
St. John’s Wood Apartments, 261 Va. 97, 102, 540 S.E.2d
134, 137 (2001).
Dr. Fuste and Dr. Vanden Hoek were employed as
pediatricians by Riverside Healthcare Association, Inc.
(RHA), from 1994 until 1999. In 1999, a dispute arose
between the plaintiffs and RHA which resulted in both
doctors terminating their employment with RHA. Drs. Fuste
and Vanden Hoek did not open a new medical practice until
February 2000.
Subsequently, the plaintiffs filed a second amended
motion for judgment against RHA, Riverside Hospital, Inc.
(Riverside Hospital), Riverside Physician Services, Inc.
(RPS) (collectively the Riverside defendants), Peninsula
Healthcare, Inc. (PHI), and Healthkeepers, Inc.
(Healthkeepers). Although the plaintiffs asserted claims
of wrongful discharge, defamation, and conspiracy to injure
2
both doctors in the practice of their profession, the only
issue on appeal concerns the allegations of defamation.
As to that claim, the plaintiffs asserted that, after
they left their employment with RHA, the defendants and
their agents defamed them in order to harm the plaintiffs’
new medical practice. Specifically, Drs. Fuste and Vanden
Hoek alleged that Barry Gross and Dr. Eugene Temple, acting
within the course and scope of their employment with RHA
and as agents of the other Riverside defendants, along with
C. Burke King and Mae Ellis Terrebonne, officers of
Healthkeepers and PHI who were also acting in the course
and scope of their employment, informed patients, agents of
other hospitals, and credentialing officials at Mary
Immaculate Hospital and Sentara Hampton General that Drs.
Fuste and Vanden Hoek were “unprofessional” and
“uncooperative,” that they had “left suddenly” and
“abandoned their patients,” and that there were “concerns
about their competence.” The plaintiffs alleged that some
of these false statements were made to individuals within
the organizations who then repeated them to others outside
the organizations.
Continuing, the plaintiffs alleged that one caller to
Healthkeepers was told by someone named “Theresa” that Drs.
Fuste and Vanden Hoek would “never be put back on the
3
Healthkeepers list of providers because of the way they
left Riverside.” Parents and grandparents of the
plaintiffs’ former patients who inquired of “Riverside
Pediatrics” 1 as to the plaintiffs’ whereabouts were informed
that Drs. Fuste and Vanden Hoek had “left suddenly,” “were
not able to work in the area,” and “their whereabouts were
unknown.” One caller also asked an individual at
Healthkeepers about the plaintiffs and was told that they
had “left suddenly and that she should find another
pediatrician.”
Finally, the plaintiffs alleged that an employee of
Riverside contacted one of their prospective staff members
and stated that “Dr. Fuste’s and Vanden Hoek’s new practice
would be immediately shut down the day it opened, and that
if she took a job there she would never have a future job
with Riverside.” The plaintiffs alleged that all these
statements were made intentionally, maliciously, and in bad
faith to injure them in the practice of their profession.
The defendants filed demurrers to the second amended
motion for judgment. After considering memoranda and
argument of counsel at a hearing on the demurrers, the
1
In several paragraphs of the second amended motion
for judgment, the plaintiffs refer to “Riverside
Pediatrics.” However, they did not identify any of the
named defendants by that term.
4
circuit court, recognizing that it must view the pleading
in the light most favorable to the plaintiffs, nevertheless
concluded that the second amended motion for judgment did
not state claims for wrongful discharge, defamation, or
conspiracy. Specifically with regard to the allegations of
defamation, the court stated that “[t]he defamatory
statements as alleged, on balance, appear to be opinion[s]
by and between people involved in the health care field.”
Incorporating its reasons stated from the bench, the court
subsequently entered an order sustaining the demurrers and
dismissing the case with prejudice. This appeal followed.
ANALYSIS
Our review of a circuit court’s judgment sustaining a
demurrer is guided by well-settled principles. The purpose
of a demurrer is to test the legal sufficiency of a
pleading. Welding, Inc. v. Bland County Service Authority,
261 Va. 218, 226, 541 S.E.2d 909, 913 (2001). “A demurrer
admits the truth of all properly pleaded material facts.
‘All reasonable factual inferences fairly and justly drawn
from the facts alleged must be considered in aid of the
pleading.’ ” Ward’s Equipment, Inc. v. New Holland N.
America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997)
(quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374
(1988)). However, a demurrer does not admit the
5
correctness of the conclusions of law found in the
challenged pleading. Id. On appeal, a plaintiff attacking
a trial court’s judgment sustaining a demurrer need show
only that the court erred, not that the plaintiff would
have prevailed on the merits of the case. Thompson v.
Skate America, Inc., 261 Va. 121, 128, 540 S.E.2d 123, 127
(2001).
The plaintiffs assert that the circuit court erred in
finding that the defamatory statements alleged in the
second amended motion for judgment were merely opinions and
therefore not actionable as defamation or defamation per
se. Conversely, the defendants claim that the alleged
statements cannot form the basis of a cause of action for
defamation because they were either mere expressions of
opinion or privileged communications. The defendants also
argue that the plaintiffs failed to identify the
circumstances and details of the alleged defamatory
communications and that such failure is fatal to their
case.
At common law, defamatory words that “prejudice [a]
person in his or her profession or trade” are actionable as
defamation per se. Carwile v. Richmond Newspapers, Inc.,
196 Va. 1, 7, 82 S.E.2d 588, 591 (1954). A defamatory
statement may be made “by inference, implication or
6
insinuation.” Id., 82 S.E.2d at 592. However, “[p]ure
expressions of opinion, not amounting to ‘fighting
words,’ ” are protected by the First Amendment of the
Constitution of the United States and Article 1, § 12 of
the Constitution of Virginia. Chaves v. Johnson, 230 Va.
112, 119, 335 S.E.2d 97, 101-02 (1985). Thus, “speech
which does not contain a provably false factual
connotation, or statements which cannot reasonably be
interpreted as stating actual facts about a person cannot
form the basis of a common law defamation action.” 2 Yeagle
v. Collegiate Times, 255 Va. 293, 295, 497 S.E.2d 136, 137
(1998), accord WJLA-TV v. Levin, 264 Va. 140, 156, 564
S.E.2d 383, 392 (2002).
Statements that are relative in nature and depend
largely upon the speaker’s viewpoint are expressions of
opinion. Chaves, 230 Va. at 119, 335 S.E.2d at 101.
Whether an alleged defamatory statement is one of fact or
opinion is a question of law and is, therefore, properly
decided by a court instead of a jury. Id., 335 S.E.2d at
102.
2
In Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-21
(1990), the Supreme Court of the United States declined to
exclude, in all instances, statements of opinion as the
basis for a common law defamation cause of action.
7
Applying these principles, we hold that the alleged
statements that Drs. Fuste and Vanden Hoek “abandoned”
their patients and that there were “concerns about their
competence” not only prejudice the doctors in the practice
of their profession, see Carwile, 196 Va. at 7, 825 S.E.2d
at 591, but also contain “a provably false factual
connotation.” WJLA-TV, 264 Va. at 156, 564 S.E.2d at 392.
In other words, they are capable of being proven true or
false. For example, evidence could be presented to show
whether there were, in fact, concerns about the plaintiffs’
competence. Similarly, since the term “abandon” has a
particular connotation in the context of a doctor’s
professional responsibility to a patient, see Rosen v.
Greifenberger, 257 Va. 373, 380, 513 S.E.2d 861, 865 (1999)
(a doctor has a duty to continue services to a patient
after accepting employment and cannot thereafter
voluntarily “abandon” a patient); Vann v. Harden, 187 Va.
555, 565-66, 47 S.E.2d 314, 319 (1948)(same), the statement
that Drs. Fuste and Vanden Hoek “abandoned” their patients
is demonstrably true or false. See Blue Ridge Bank v.
Veribanc, Inc., 866 F.2d 681, 685 (4th Cir. 1989) (a
speaker’s choice of words and the context of an alleged
defamatory statement within the speech as a whole are
8
factors to consider when deciding if a challenged statement
is one of fact or opinion).
Therefore, these alleged statements may form the basis
of a cause of action for defamation per se. The remaining
alleged statements are either dependent on the speaker’s
viewpoint and are, therefore, expressions of opinion, see
Chaves, 230 Va. at 119, 335 S.E.2d at 101, do not prejudice
the doctors in their professions, see Carwile, 196 Va. at
7, 82 S.E.2d at 591, or, taken “in their plain and natural
meaning,” are not defamatory. Id.
Nevertheless, the defendants argue that the circuit
court did not err in sustaining the demurrer because the
plaintiffs failed to allege that Gross, Temple, King and
Terrebone were acting within the scope of their employment
with, or as agents of, any of the named defendants. They
also assert that the plaintiffs did not identify to whom,
by whom, and under what circumstances the alleged
defamatory statements were made. However, upon reviewing
the second amended motion for judgment, we conclude that
the plaintiffs sufficiently pled the circumstances and
details of the alleged communications to withstand
challenge at the demurrer stage of the proceeding below.
In paragraph 34 of the second amended motion for
judgment, the plaintiffs alleged that “Defendants, through
9
their agents, intentionally combined and conspired with
each other to harm Plaintiffs’ business maliciously and
willfully.” In that same paragraph, the plaintiffs
identified Gross, Temple, King and Terrebone as those
agents and alleged that each was acting within the scope of
his or her employment. Further, the second amended motion
for judgment gives the exact words allegedly used by Gross,
Temple, King, and Terrebone, or those acting at their
direction, i.e., that the doctors “abandoned their
patients” and that there were “concerns about their
competence.”
Contrary to the defendants’ argument, our decision in
Federal Land Bank of Baltimore v. Birchfield, 173 Va. 200,
3 S.E.2d 405 (1939), does not require that a pleading
alleging defamation identify to whom the statements were
made and under what circumstances. In that case, we held
that “[g]ood pleading requires that the exact words spoken
or written must be set out in the declaration in haec
verba. Indeed, the pleading must go further, -- that is,
it must purport to give the exact words.” Id. at 215, 3
S.E.2d at 410. However, details such as the time and place
of the alleged communication, the name of a defendant’s
agent, and the names of the individuals to whom the
defamatory statement was purportedly communicated can be
10
provided in a bill of particulars if not included in a
plaintiff’s pleading. 3 Id. at 217, 3 S.E.2d at 411.
Finally, the defendants argue that any statements
allegedly made by them during their own credentialing
process or to the credentialing officials at other
hospitals were privileged and are, therefore, not
actionable. While we have applied the doctrine of
qualified privilege in cases involving alleged defamatory
statements made “between persons on a subject in which the
persons have an interest or duty,” we have also held that
this qualified privilege may be defeated by proof that the
defamatory statements were made maliciously. Larimore v.
Blaylock, 259 Va. 568, 572, 528 S.E.2d 119, 121 (2000);
accord Chalkley v. Atlantic Coast Line R.R. Co., 150 Va.
301, 306, 143 S.E. 631, 632 (1928). Malice sufficient to
overcome a qualified privilege is “behavior actuated by
motives of personal spite, or ill-will, independent of the
occasion on which the communication was made.” Gazette,
3
In addition to the demurrer, Healthkeepers and PHI
filed a motion for bill of particulars in response to the
second amended motion for judgment. In part, they
requested that the plaintiffs identify each officer and
agent of Healthkeepers and/or PHI alleged to have made
defamatory statements as well as the substance of those
statements, the dates they were made, and to whom the
statements were communicated. The circuit court took no
action on this motion.
11
Inc. v. Harris, 229 Va. 1, 18, 325 S.E.2d 713, 727 (1985).
It is a court’s duty to decide as a matter of law
whether a communication is privileged. But, the question
whether a defendant “ ‘was actuated by malice, and has
abused the occasion and exceeded [the] privilege’ ” is a
question of fact for a jury. Alexandria Gazette Corp. v.
West, 198 Va. 154, 160, 93 S.E.2d 274, 279-80 (1956)
(quoting Bragg v. Elmore, 152 Va. 312, 325, 147 S.E. 275,
279 (1929)); see also Federal Land Bank, 173 Va. at 222, 3
S.E.2d at 414; Chalkley, 150 Va. at 306, 143 S.E. at 632.
Considering all the allegations in the second amended
motion for judgment, not only those with regard to the
alleged defamation but also the allegations concerning the
circumstances attending the doctors’ decision to leave
their employment with RHA, we hold that the plaintiffs pled
sufficient facts to survive a demurrer with regard to the
issue of malice if the two remaining communications, that
the doctors “abandoned their patients” and that there were
“concerns about their competence,” were privileged. We
express no opinion on the issue of privilege. 4
4
The defendants also assert that the federal Health
Care Quality Improvement Act of 1986, specifically 42
U.S.C. § 11111(a) (2000), provides immunity to them in the
context of a professional review action. However, that
statute states that “no person . . . providing information
to a professional review body regarding the competence or
12
CONCLUSION
For these reasons, we will affirm, in part, and
reverse, in part, the judgment of the circuit court and
remand for further proceedings consistent with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
professional conduct of a physician shall be held, by
reason of having provided such information, to be liable in
damages under any law of the United States or of any State
. . . unless such information is false and the person
providing it knew that such information was false.” 42
U.S.C. § 11111(a)(2) (emphasis added). Similarly, Code
§§ 8.01-581.16 and –581.19 provide immunity from civil
liability only in the absence of bad faith or malicious
intent. Thus, while we do not decide whether any of these
statutory provisions are applicable in this case, we do
hold that, for the reasons already stated, the plaintiffs
pled sufficient facts to survive a demurrer.
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