Cashion v. Smith (Summary)

DEFAMATION

Cashion v. Smith, No. 121797 (Va. Oct. 31, 2013)

The Supreme Court of Virginia affirmed in part and reversed in part a lower court’s grant of summary judgment on an anesthesiologist’s claim of defamation. The anesthesiologist sued a trauma surgeon who accused the anesthesiologist of euthanizing a patient during surgery. The surgeon made these statements, in front of others, in the OR directly after the surgery and in the hallway.

The supreme court held that the lower court erred in determining that statements made by the surgeon that arguably did not accuse the anesthesiologist of euthanasia were non-defamatory.  The court stated insinuations may be defamatory, and the surgeon’s insinuations were something that could be proven true or false through expert testimony.

The court disagreed with the lower court’s judgment that the euthanasia statements were privileged as a matter of law. The court stated that while the communications were on the subject of the care of the patient and those who heard them had an interest in the level of care provided to patients, it was possible for this privilege to be lost. The qualified privilege can be lost through demonstration of malice, which is a determination for the jury.

The court also held that the surgeon’s statements were not rhetorical hyperboles, which are not considered to be defamatory under state law. The court stated that the statements could be reasonably interpreted as allegations of fact, as it was possible for a listener to assume that the anesthesiologist actually engaged in the conduct described by the surgeon.