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Wednesday, January 25, 2012

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander

Finding there is a qualified privilege with respect to statements made after a whistle-blowing event defeats an employee's claim of slander
Cusimano v United Health Servs. Hosps., Inc., 2012 NY Slip Op 00271, Appellate Division, Third Department

Following a report from a member of the staff that a physician was storing pharmaceutical drug samples in the physician's office in violation of the employer’s policy, the office of the physician was searched and 114 sample packets, totaling 798 tablets, of the drug Provigil, a controlled substance, was found in an unlocked filing cabinet in the physician’s office. This constituted a violation of the employer’s policy barring the storage of Provigil in the offices of its physicians.

When the search was completed, the employees performing the search confiscated the Provigil. They then allegedly reported their findings to other medical office assistants working at the facility and commented that the physician “would likely be arrested and dismissed.

The physician filed a lawsuit against the employer and certain of its employees alleging slander per se, the intentional infliction of emotional distress, prima facie tort and trespass. Supreme Court dismissed the physician’s complaint and the physician appealed.

The Appellate Division said that Supreme Court properly determined that the statements of the employees to co-workers were protected by a qualified privilege, noting that "A qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.”

Significantly, the court said that such common interest “may include statements to fellow employees on a subject concerning the employer.”

In this instance the employees’ statements to which the physician objected “were made solely to their co-employees,” all of whom were collectively responsible for the functioning and proper operation of the facility.

As all the employees involved had a common interest in knowing whether pharmaceuticals were being stored in violation of the employer’s policy and the implications with respect to physicians storing such items in their  offices, the Appellate Division found that the employees being sued “demonstrated that the statements were protected by a qualified privilege.”

This, said the court, shifted the burden to prove that the employees "acted out of personal spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that their statements were probably false" to the physician.

Although the physician said that certain of the employees involved “harbored ill will” as a result of certain events that transpired in the days prior to the search, the Court noted that "spite or ill will refers not to [a] defendant's general feelings about [a] plaintiff, but to the speaker's motivation for making the defamatory statements [, and] a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication" of the offending statement.

The employees conducting the search did based upon first-hand information from another worker that she observed pharmaceutical samples being delivered to physician’s office Their statements to other employees following the discovery of the samples of Provigil in the physician’s office were “made in furtherance of the common interest” and thus were protected by the privilege.”

The decision states that even if the individuals disliked the physician or possessed some ill will towards the physician, the physician failed to make an evidentiary showing that the employees involved "were motivated by malice alone in making the statements" nor was there any representation that the employees involved “knew that their statements describing Provigil as a narcotic* were false or that they acted with reckless disregard as to whether [such statements] were false.”

Indeed, said the Appellate Division,  “the proof established that the terms ‘narcotic’ and ‘controlled substance’ are often used interchangeably throughout the medical community, and that the [employees] neither knew nor understood the difference.

Accordingly, said the court, the physician failed to demonstrate a triable issue regarding the existence of constitutional or common-law malice sufficient to defeat the qualified privilege and the privileged nature of these statements likewise precludes liability against the employer under the theory of respondeat superior.

The Supreme Court’s ruling was affirmed by the Appellate Division.

* Although all narcotics are controlled substances, not all controlled substances are narcotics.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00271.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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