Argued March 27, 1973. —
Decided April 20, 1973.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Affirmed.
For the appellant there was a brief by Kluwin, Dunphy, Hankin Hayes of Milwaukee, and oral argument by John A. Kluwin.
For the respondent there was a brief by Ray T. McCann and oral argument by Leonard L. Loeb, both of Milwaukee.
On January 18, 1971, the plaintiff, Ettore DiMiceli, M.D., commenced this action for libel against defendant, Jack A. Klieger, M.D. Both are staff members of St. Joseph's Hospital in Milwaukee, the plaintiff a specialist in anesthesiology, the defendant a specialist in obstetrics.
The plaintiff's complaint alleges that, on or about June 24, 1970, the defendant wrote a letter to the president of the medical staff of the hospital, reading:
"On Saturday morning June 12th Dr. E. DiMiceli called the labor room and arbitrarily indicated to the nurse that although he was responsible for obstetrical anesthesia on that day he would not be available for the patients of Doctors Klieger or Massart. Should their patients require anesthesia they could `just call Dr. Schoeneman.' Dr. DiMiceli did not inform Dr. Klieger of this fact, nor did he call Dr. Massart, nor did he call Dr. Schoeneman or even insure the fact that Dr. Schoeneman would be available. This placed in jeopardy a group of obstetrical patients completely unprotected from the standpoint of anesthesia, and without their doctors' knowledge. This hostile act, according to Dr. DiMiceli's own admission, was a `reprisal' for having called Dr. Schoeneman to assist us with some surgical procedures during the past several weeks. The record will indicate that since Dr. Schoeneman's appointment to the Staff our office has performed 90 surgical procedures. Dr. Schoeneman was invited to participate in only 12 instances; the remainder was shared by the other members of the Department of Anesthesiology including Dr. DiMiceli.
"It was our opinion, and I believe this is factual, that Dr. Schoeneman was approved by the Credentials Committee and that his application was supported by a letter of recommendation from Dr. Robert Schuyler. The Executive Committee recommended him for staff appointment and the Board of Governors agreed. Dr. Schoeneman was not placed on rotation in the Department and hence his only opportunity for work was of necessity by personal invitation. Normal, kindly, human and professional interrelationships made it mandatory that he be given a case occasionally and this is precisely what we did in good faith. It appears to me that this kind of conduct hardly warrants reprisals of any kind.
"The Department of Obstetrics is covered by nurse anesthetists almost completely. On rare occasions it becomes necessary to enlist the help of the Department of Anesthesiology. This occasional coverage, in the absence of a nurse anesthetist, is not merely a courtesy on the part of the anesthesiologist, but an obligation that grows out of the luxury of being permitted to practice medicine at St. Joseph's Hospital.
"Conduct which would permit a doctor to place his own personal prejudices ahead of the safety of patients and the security and reputation of a hospital must be labeled as reprehensible. Such behavior is diametrically opposed to the high moral and ethical standards and traditions which are synonymous with the name of St. Joseph's Hospital. Dr. DiMiceli has violated his own Hippocratic Oath, and since he has indicated that he intends to continue in this fashion I have no alternative but to ask that the Executive Committee send him a severe letter of censure. I ask too that the Executive Committee undertake to resolve the problem immediately and with the same forthrightness that has been typical of the Committee's activities during stressful times in the past. This I ask in the name of good patient care and hospital unity."
The plaintiff's complaint alleges the letter to be false, libelous and maliciously written. The plaintiff further alleges that, as a result of such letter, the executive committee of the hospital, on October 26, 1970, issued an order reading in part:
"That Dr. DiMiceli be reprimanded by letter for conduct that does not fit in with the modern concept of team effort in the practice of medicine in a modern hospital today."
Alleging damage in his professional capacity and humiliation, the plaintiff seeks damages in the amount of $10,000 compensatory damages and $50,000 punitive damages.
The defendant answered, denying that the letter was false, libelous or actuated by malice. Defendant further alleges that the order or letter of the hospital executive committee was issued after and as a result of hearings and investigation. Defendant contends that the letter was a good-faith effort to protect the interests of his patients and of the hospital. Defendant's answer further contends that the letter, written to the executive committee of the hospital, was a privileged communication involving patient care and staff conduct.
On June 21, 1971, the defendant filed a motion for summary judgment. On October 4, 1971, the court issued an order denying the motion for summary judgment. On January 5, 1972, the defendant filed notice of appeal to this court from such order.
This is an appeal from an order denying defendant's motion for summary judgment in a libel action. Two issues are raised. Three will be discussed.
The test. Not raised, at least at the summary judgment stage, is the question of whether the letter sent was or could be considered defamatory. In this state and elsewhere, a communication is defamatory ". . . if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." The test is whether the communication is capable of such meaning. If reasonable men might differ as to whether a communication is defamatory, the question is for the jury. To save a return trip on this issue, we join the trial court in seeing the question here as one for a jury to determine.
Restatement, 3 Torts, p. 140, sec. 559, accepted and approved in D'Amato v. Freeman Printing Co. (1968), 38 Wis.2d 589, 595, 157 N.W.2d 686; Waldo v. Journal Co. (1969), 45 Wis.2d 203, 207, 172 N.W.2d 680; Ranous v. Hughes (1966), 30 Wis.2d 452, 460, 141 N.W.2d 251; Lathan v. Journal Co. (1966), 30 Wis.2d 146, 153, 140 N.W.2d 417.
The truth. Defendant contends that his motion for summary judgment should have been granted because the statements contained in his letter are true. Truth of a statement is a defense in an action for libel. In fact, it is enough if the statement is "substantially true." Since this case is at the summary judgment stage, a definite procedure is to be followed in determining whether there are issues of fact presented which require trial. Steps in that procedure are:
Lathan v. Journal Co., supra, at page 158, citing Williams v. Journal Co. (1933), 211 Wis. 362, 370, 247 N.W. 435.
Id. at page 160.
Id. at page 160.
3. Affidavits and proof of the party opposing the motion for summary judgment are to be examined to determine if there are disputed material facts (or undisputed material facts from which reasonable alternative inferences may be drawn) sufficient to entitle the opposing party to go to trial.
Id. at pages 160, 161.
In the case before us, we find, exactly as did the trial court, disputes as to material facts sufficient to entitle the plaintiff to go to trial. For example, there is a basic disagreement as to whether or not the plaintiff stated that he would not be available for the patients of the defendant doctor. The statement of a nurse at the hospital is that: ". . . Dr. DiMiceli told me that Dr. Schoeneman should be called, but that he would not come." As to the conversation with the nurse, plaintiff submits an affidavit by a doctor, including the statement that: ". . . at no time, in the presence of affiant, did the plaintiff state that he would not administer anesthetics for the defendant, Dr. Klieger." On the defense of truth, this dispute as to what actually occurred is not peripheral. Since the summary judgment procedure is "not to be a trial on affidavits," such dispute makes entirely proper the trial court's denial of the motion for summary judgment on this point.
Jahns v. Milwaukee Mut. Ins. Co. (1968), 37 Wis.2d 524, 530, 155 N.W.2d 674, stating: "The summary-judgment procedure is not to be a trial on affidavits. A party opposing summary judgment defeats the motion if he shows by affidavits, or other proof, that there are substantial issues of fact or reasonable inferences which can be drawn from the evidence."
A privilege? Additionally, defendant contends that his motion for summary judgment should have been granted because the hospital executive committee was, to quote his brief, "a quasi-judicial body," and the letter sent is therefore "absolutely privileged."
As to judicial proceedings, it is true that defamatory words published or spoken by parties, witnesses and counsel in judicial proceedings are thus privileged when the statements bear a proper relationship to the issues. And such absolute privilege has been extended to quasi-judicial proceedings, including petition to a governor for removal of a sheriff, town board proceedings concerning a tavern license, a complaint to the state real estate brokers' board. Also, it is true that there seems to be "no clear definition" of what constitutes a quasi-judicial proceeding before a quasi-judicial body.
Larkin v. Noonan (1865), 19 Wis. 93 ([*]82).
Werner v. Ascher (1893), 86 Wis. 349, 56 N.W. 869.
See: Prosser, Law of Torts (hornbook series, 4th ed.), pp. 779, 780, sec. 114.
However, we find nowhere cases cited which extend or define a "quasi-judicial body" to come close to including the meeting of the executive committee of the medical staff of a private hospital. The case before us concerns a letter of complaint related to the internal affairs and operation of a private medical facility. It is true that the hospital here was required to have an organized medical staff, and such staff was given jurisdiction in matters of disciplinary procedures for infraction of hospital and medical policies. In terms of the possible impact upon the right to practice medicine or use the facilities of a certain hospital, a public interest is involved. But this falls short of transforming an executive committee of staff members of a private hospital into a quasi-judicial body.
Id. at pages 779, 780. See: Annot. (1956), 45 A.L.R. 2d 1296, Libel and slander: privilege applicable to judicial proceedings as extending to administrative proceedings; 40-48 A.L.R. 2d Later Case Service, at page 535; 50 Am. Jur. 2d, Libel and Slander, pp. 746, 747, 749, 751, secs. 234 and 237; 53 C.J.S., Libel and Slander, pp. 169, 170, sec. 104b, What Constitutes Judicial Proceeding.
See: 2 Wisconsin Administrative Code, sec. H, 24.04(1).
See: 2 Wisconsin Administrative Code, sec. H, 24.04(1)(a)2.
As to the claim of absolute privilege, this court has held that even school board members ". . . do not fall within the category of high ranking executive officials of government whose defamatory acts should be accorded absolute privilege. . . ." In that case this court discussed the "competing values" that exist as to ". . . determining the scope of the privilege to be accorded public officials while acting in an executive or administrative capacity. . . ." Here we do not reach, much less cross, the threshold of finding the committee, which here received the defendant's letter, to be a "quasi-judicial body." It is not such, and the letter sent to it by a staff member can not be accorded "absolute privilege" as is here sought.
Ranous v. Hughes, supra, at page 467.
Id. at page 466.
On this record and on the issues raised, the trial court properly denied defendant's motion for summary judgment.
By the Court. — Order affirmed.