Davis v. Hildyard

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No. 92,439

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUNCAN DAVIS, M.D.,

Appellant,

v.

VICTOR HILDYARD, M.D., and

RAYMOND KETTING, M.D.,

Appellees.

SYLLABUS BY THE COURT

1. K.S.A. 65-442 grants qualified liability immunity in peer review processes
in an effort to encourage hospitals to actively engage in peer review of staff
physicians.

2. A trial court should be cautious in granting a motion for summary judgment
when resolution of the dispositive issue necessitates a determination of the
state of mind of one or both of the parties.

3. If the plaintiff fails to offer clear and convincing evidence of an
extrinsic character to prove actual malice on the part of the defendant in the
publication of a slander on a qualified privileged occasion, there is no issue
of material fact to be determined, and it is the duty of the trial court to
grant the defendant’s motion for summary judgment.

4. The elements of defamation include false and defamatory words,
communicated to a third person, which result in harm to the reputation of the
person defamed.

5. Damages recoverable for defamation must be proven.

Appeal from Thomas District Court; JACK L. BURR, judge. Opinion filed June
17, 2005. Affirmed.

Larry G. Michel, of Kennedy, Berkley, Yarnevich & Williamson,
Chartered, of Salina, for the appellant.

Michael R. O’Neal, of Gilliland & Hayes, P.A., of Hutchinson,
for the appellees.

Before JOHNSON, P.J., PIERRON, J., and BUKATY, S.J.

PIERRON, J.: Duncan Davis, M.D., filed a defamation action against Victor
Hildyard, M.D., and Raymond Ketting, M.D. After discovery, the trial court
granted summary judgment in favor of the defendants. Dr. Davis argues the
district court erred in concluding the alleged slanderous statements were made
in the context of peer review. Dr. Davis further contends there is sufficient
evidence of malice and damages to allow the case to proceed to a jury trial. We
disagree and affirm the trial court’s well reasoned opinion.

Dr. Davis is a general surgeon who lives in Goodland and provides medical
services in both Thomas and Sherman Counties. In Thomas County, he provided
surgical services at Citizens Medical Center (CMC) located in Colby. Dr. Davis
has been practicing medicine in Thomas and Sherman Counties since approximately
1998. Dr. Hildyard and Dr. Ketting are licensed physicians and provide medical
services in Thomas County as well. Dr. Hildyard has practiced medicine in Colby
for nearly 30 years. Dr. Ketting joined Dr. Hildyard’s practice in 1996.

On November 20, 2002, Dr. Davis filed a defamation action against Dr.
Hildyard, Dr. Ketting, and Judith Sears, a member of the Board of Trustees of
CMC, claiming that on one or more occasions the defendants made false and
defamatory statements about him. Dr. Davis alleged that Dr. Hildyard made these
statements against him at a medical staff meeting on August 27, 2002, and also
similar statements at an emergency medical services meeting. Dr. Davis also
alleged Dr. Ketting made defamatory statements at the same medical staff meeting
concerning authorities exhuming some of Dr. Davis’ past patients. The action
against Judith Sears was eventually dismissed by Dr. Davis.

Regarding the medical staff meeting, Dr. Davis presented the deposition
testimony of Michael Boyles, CEO of CMC from 2000 through 2003. Boyles stated:
“Dr. Hildyard had stated during the course of a conversation in relation to the
emergency room and surgical coverage, he had stated, and I can’t remember the
specific words, but it was either, ‘Would you want a person operating on you,’
or, ‘I wouldn’t want a person operating on me who can’t get a license in any
other state.'” Boyles stated that Dr. Ketting followed up Dr. Hildyard’s
comments with: “There are four or five lawsuits pending in Goodland, and they’re
exhuming bodies.” Sears testified she heard Dr. Ketting’s comment at the meeting
about exhuming bodies and she relayed this information to the Board of Trustees
of CMC at a board meeting.

Dr. Hildyard is also the medical director of the Thomas County Emergency
Medical Services (EMS). He oversees the medically-related policy and procedures
of the EMS, meeting with them once a month in a quality assurance setting to
discuss cases, outcomes, and any problems in first responder care.

Regarding the statements made at the EMS meeting, Dr. Davis presented the
deposition testimony of Kelly Focke, a medical assistant and emergency medical
technician (EMT) living in Colby. Focke testified that at one of the regular
monthly EMS business meetings prior to November 2002, Dr. Hildyard told the
group of probably 20 EMTs that “Dr. Davis could not practice in the state of
Colorado, and that there were three or four bodies being exhumed to find out the
cause of deaths of patients of Dr. Davis.”

In 1997, a formal complaint was filed against Dr. Davis before the State
Board of Medical Examiners of Colorado by the Attorney General. The formal
complaint alleged unprofessional conduct with regard to Dr. Davis’ care and
treatment of 11 patients. Dr. Davis stipulated to the final agency order. As a
result of the disciplinary action in Colorado, Dr. Davis’ license to practice
medicine in Colorado was placed on probationary status for 5 years. Before he
could perform surgery, he was required to have another surgeon sign the
patient’s chart allowing the surgery. Additionally, Dr. Davis was required to be
accompanied by another surgeon during any surgical event. Dr. Davis was required
to have a Colorado physician perform certain monthly monitoring of a required
number of Dr. Davis’ patients. The Colorado disciplinary order also contemplated
that Dr. Davis would have a large portion of his practice in Kansas. Dr. Davis
was required to have a certain number of cases per month in Colorado in order to
fulfill his probationary status.

Dr. Davis testified in his deposition that he obtained staff privileges at
CMC before the Colorado complaint was filed. He did not disclose the Colorado
disciplinary action to the Board of Trustees of CMC. Dr. Davis stated he was
unaware when the Board of Trustees finally learned of the disciplinary action,
but that it was the subject of a Board of Trustees meeting in 1998 or 1999. Dr.
Davis testified that Judith Sears was upset that he had not disclosed the
Colorado complaint. The information regarding Dr. Davis’ Colorado disciplinary
action was available on the internet.

Dr. Ketting testified that, for the most part, he admitted to making the
statements at the medical staff meeting on August 27, 2002. He said the comments
were made in the context of a discussion concerning credentialing activities,
specifically as to Dr. Davis. Dr. Hildyard denied making any statements at the
medical staff meeting about anyone losing their license in Colorado. He said
that he commented that there were restrictions on Dr. Davis’ license in
Colorado. Dr. Hildyard also denied making the statements at the EMS meeting
attributed to him by another person.

The defendants dispute the accuracy of the claimed remarks attributed to
them, but do not dispute that they made statements wherein they expressed
concern over Dr. Davis’ skills as a physician. Of course, for the purposes of
summary judgment, we must assume the accuracy of Dr. Davis’ claims though they
are disputed at least in part by the defendants.

There is evidence in the record as to significant restrictions on Dr. Davis’
license in Colorado, that some malpractice actions had been filed against him,
and that one body had been exhumed as part of an investigation concerning Dr.
Davis.

As a result of the defamatory statements, Dr. Davis alleged actual economic
damages of $250,000 from the decrease in the use of his medical services. Dr.
Davis also alleged noneconomic damages in the amount of $250,000 for the
detrimental effect the statements have had on his life and family. Dr. Davis
claimed there were patient cancellations due to the rumors, but he refused to
cite any particular person who allegedly did cancel.

The trial court granted summary judgment in favor of Dr. Hildyard and Dr.
Ketting. The court found the statements alleged by Dr. Davis were relayed at
meetings covered by the peer review privilege and that the privilege “grants
immunity from civil liability to any person who in good faith provides any
information regarding a healthcare provider pursuant to the risk management
process except upon clear and convincing evidence that the report or information
was completely false and the falsity was known to the person providing the
information.”

The trial court found the statements alleged by Dr. Davis were confidential
and the only evidence contained in the record indicated that if the statements
were made, they were repeated outside of said meetings by others and not Dr.
Hildyard and Dr. Ketting. The trial court stated Dr. Davis had presented only
inferences of malice (“Dr. Hildyard has made disparaging remarks against other
physicians in the past, and has not enjoyed good relationships with other
physicians.”), and that Dr. Davis had failed to demonstrate any damages that
were directly attributable to the defendants.

The trial court’s granting of summary judgment in this case raises three
issues. The first is whether the trial court was correct in its conclusion that
the statements made by Dr. Hildyard and Dr. Ketting were within the ambit of
peer review. The second and third questions are whether there remain genuine
issues of material fact with reference to the qualified privilege provided for
in K.S.A. 65-442 and any alleged resulting damage to Dr. Davis.

K.S.A. 65-442 grants immunity in peer review processes in an effort to
“encourage hospitals to actively engage in peer review of staff physicians.”
Lemuz v. Fieser, 261 Kan. 936, 950, 933 P.2d 134 (1997). This
legislation was enacted under the belief that with the threat of liability
removed, the effective use of peer review would increase and be promoted. 261
Kan. at 951.

K.S.A. 65-442 provides in pertinent part:

“(a) There shall be no liability on the part of, and no action for damages
shall arise against, any duly appointed member of the governing board or the
duly appointed member of a committee of the medical staff of a licensed medical
care facility for any act, statement or proceeding undertaken or performed
within the scope of the functions and within the course of the performance of
the duties of such committee of the medical staff if such member acted in good
faith and without malice, and the medical staff operates pursuant to written
bylaws that have been approved by the governing board of the medical care
facility.”

Thus, K.S.A. 65-442 provides for a qualified privilege from liability for
those statements made by any member of a medical staff committee, such as a peer
review committee, in the furtherance of his or her duties, provided that those
statements were made in good faith and without malice. Smith v. Farha,
266 Kan. 991, 994, 974 P.2d 563 (1999).

K.S.A. 2004 Supp. 65-4915(a)(4) defines a peer review committee as a
committee which is authorized to perform peer review. K.S.A. 2004 Supp.
65-4915(a)(3) defines “peer review” as including the following functions:

“(A) Evaluate and improve the quality of health care services rendered by
health care providers;

“(B) determine that health services rendered were professionally indicated or
were performed in compliance with the applicable standard of care;

“(C) determine that the cost of health care rendered was considered
reasonable by the providers of professional health services in this area;

“(D) evaluate the qualifications, competence and performance of the providers
of health care or to act upon matters relating to the discipline of any
individual provider of health care;

“(E) reduce morbidity or mortality;

“(F) establish and enforce guidelines designed to keep within reasonable
bounds the cost of health care;

“(G) conduct of research;

“(H) determine if a hospital’s facilities are being properly utilized;

“(I) supervise, discipline, admit, determine privileges or control members of
a hospital’s medical staff;

“(J) review the professional qualifications of activities of health care
providers;

“(K) evaluate the quantity, quality and timeliness of health care services
rendered to patients in the facility;

“(L) evaluate, review or improve methods, procedures or treatments being
utilized by the medical care facility or by health care providers in a facility
rendering health care.”

The trial court found

“that any statements complained of by Dr. Davis, were made by the Defendants,
at one of two meetings. The first such meeting was a medical staff meeting held
at the Citizens Medical Center in Colby, Kansas. The second meeting was a
meeting of emergency medical technicians also at the hospital in Colby. The
court finds that both of said meetings are covered by the peer review privilege.
Statements made at such meetings are confidential, and the only evidence
contained in the record in this case would indicate that if said statements were
made they were repeated outside of said meetings by others and not by
Defendants.”

We agree with the trial court’s analysis.

Having affirmed the trial court’s conclusion that the statements made at the
meeting by Dr. Hildyard and Dr. Ketting are within the ambit of peer review, we
address the second issue of whether, based upon the uncontroverted facts, the
statements made are privileged under K.S.A. 65-442. The protection afforded
under the provisions of K.S.A. 65-442 exists only if the statements were made in
good faith and without malice.

In the present case, the trial court, in its grant of summary judgment on the
ultimate issue, concluded:

“[T]here is no direct testimony or evidence cited by either party to support
Plaintiff’s claim of malice on the part of the Defendants. Plaintiff attempts to
infer malice by indicating that Dr. Hildyard has made disparaging remarks
against other physicians in the past, and has not enjoyed good relationships
with other physicians. The Lloyd court held that such inferences cannot
be sufficient to show malice in a later situation involving other parties.”

In Lloyd v. Quorum Health Resources, LLC, 31 Kan. App. 2d 943, 77
P.3d 993 (2003), the court addressed a similar claim of defamation, and false
light/invasion of privacy. Lloyd, a physician, had been the subject of a hostile
work environment investigation. After the investigation resulted in no
disciplinary action taken against Lloyd, he filed the lawsuit. The district
court granted summary judgment in favor of the defendants and Lloyd appealed,
arguing the district court improperly determined fact issues, specifically the
allegations of malice. On appeal, the court found Lloyd’s claims of malice were
speculative or inferences based upon inferences. 31 Kan. App. 2d at 954.

We acknowledge the hesitancy which we should grant summary judgment in cases
of this nature as expressed in Ruebke v. Globe Communications Corp.,
241 Kan. 595, 605, 738 P.2d 1246 (1987):

“A court should be cautious in granting a motion for summary judgment when
resolution of the dispositive issue necessitates a determination of the state of
mind of one or both of the parties. Gleichenhaus v. Carlyle, 226 Kan.
167, 597 P.2d 611 (1979); Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d
1102 (1978). The existence of malice is ordinarily a question of fact for the
jury, but where the facts are not in dispute, it is a question of law for the
court. Redmond v. Sun Publishing Co., 239 Kan. 30, 36, 716 P.2d 168
(1986); Gleichenhaus v. Carlyle, 226 Kan. at 169. Summary judgment
should be employed with caution in a defamation case.”

In Ross v. Wal-Mart Stores, Inc., 730 F. Supp. 357, 361 (D. Kan.
1990), the court stated that the proof of malice in defamation actions when a
qualified privilege is found to exist requires a plaintiff to prove that the
publication was made with knowledge that the defamatory statement was false or
with reckless disregard of whether it was false. However, one subject to the
privilege may not.

“automatically insure a favorable verdict by testifying that he published
with a belief that the statements were true. The finder of fact must determine
whether the publication was indeed made in good faith. Professions of good faith
will be unlikely to prove persuasive, for example, where a story is fabricated
by the defendant, is the product of his imagination, or is based wholly on an
unverified anonymous telephone call.” St. Amant v. Thompson, 390 U.S.
727, 732, 20 L. Ed. 2d 262 , 88 S. Ct. 1323 (1968).

In Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 480-81,
807 P.2d 71 (1991), the court stated that protection under a qualified privilege
exists only in the absence of lack of good faith or malice. The court held:

“In general, the question of actual malice in a defamation action is a
question of fact for the jury. However, under certain circumstances, a motion
for summary judgment and the granting of that motion are appropriate. If the
plaintiff fails to offer clear and convincing evidence of an extrinsic character
to prove actual malice on the part of the defendant in the publication of a
slander on a qualifiedly privileged occasion, there is no issue of material fact
to be determined, and it is the duty of the trial court to grant the defendant’s
motion for summary judgment.” 248 Kan. 469, Syl. ? 4.

We agree with the trial court that Dr. Davis has failed to offer clear and
convincing evidence of an extrinsic character to prove actual malice on the part
of Dr. Hildyard or Dr. Ketting.

The statements in this case were made in the context of peer review
proceedings, and Dr. Davis has failed to demonstrate clear and convincing
evidence of malice that would lift the cloak of protection from these privileged
statements.

The trial court’s finding that Dr. Davis failed to establish any evidence of
damages directly attributable to Dr. Hildyard and Dr. Ketting is not necessary
to a final disposition of this appeal. However, we will address the issue as it
has been ably argued by both parties and is an issue which will often arise in
cases of this nature.

The elements of defamation include false and defamatory words, communicated
to a third person, which result in harm to the reputation of the person defamed.
Luttrell v. United Telephone System, Inc., 9 Kan. App. 2d 620, 620-21,
683 P.2d 1292 (1984), aff’d 236 Kan. 710, 695 P.2d 1279 (1985). In
Moran v. State, 267 Kan. 583, 599, 985 P.2d 127 (1999), the court
stated the following, regarding damages and proof:

“In Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94
S. Ct. 2997 (1974), the United States Supreme Court ruled: ‘It is necessary to
restrict defamation plaintiffs who do not prove knowledge of falsity or reckless
disregard for the truth to compensation for actual injury.’ 418 U.S. at 349.
Gertz changed the law in Kansas. Damages recoverable for defamation,
whether per se or not, could no longer be presumed but must be proven.”

Broad and factually unsupported allegations of patient cancellations do not
support a claim for damages for alleged defamation. Further, there is
insufficient evidence in the record of harm to Dr. Davis’ reputation or evidence
of damage by reason of injury to his reputation. We agree with the trial court
that Dr. Davis has failed to establish a causal relationship between his alleged
damages, both economic and noneconomic, and the statements made by Dr. Hildyard
and Dr. Ketting.

The legislative history on this provision of qualified privilege is sparse.
However, the statute obviously shows a legislative intent to encourage full
discussion of health care issues in the context of peer review meetings, which
are intended to be confidential.

While the allegations of what was said is disputed, it appears clear that the
general nature of the comments dealt with the vital issue of physician
competence. While Dr. Davis’ disputed version of the comments may not have been
completely true, the substance of the concerns expressed by the defendants was
generally true and addressed the issues that are the object of the statute.

It would defeat the obvious purpose of the statute to force cases of this
kind into trial based on allegations of the nature that we have here, when it is
obvious that the basic substance of them; unreported restrictions on Dr. Davis’
license in Colorado, malpractice law suits, and the exhumation of a former
patient, are true.

Under the facts of this case, the trial court was correct to grant summary
judgment.

Affirmed.

JOHNSON, J., concurring: I believe the majority’s application of K.S.A.
65-442 to the Thomas County Emergency Medical Services meeting pushes the
qualified privilege from liability to its limit. Nevertheless, I can concur with
the majority’s finding because of the importance of encouraging open and candid
discourse among those in the medical community to foster vigilance in evaluating
physician competence.

I also share the majority’s hesitancy premised upon our Supreme Court’s
directive to be cautious in using summary judgment in a defamation case.
However, given the manner in which this case was presented, I can vote to affirm
the district court’s ruling that the plaintiff’s attempts to create an inference
of malice were ineffectual to avoid summary judgment.

Finally, I wholeheartedly agree that, given the foregoing findings, we need
not address the district court’s ruling that Dr. Davis failed to establish any
evidence of damages directly attributable to Doctors Hildyard and Ketting. Thus,
we should have resisted the temptation to editorialize on whether, resolving all
the facts and the inferences which may reasonably be drawn therefrom in favor of
Dr. Davis, the defendants are entitled to judgment as a matter of law on the
issues of causation and damages. Therefore, my concurrence specifically excludes
the majority’s judicial dicta on damages and causation.

END