holding that statements are not actionable for defamation or business disparagement when the statement is substantially true—when "specific statements ... err in the details but ... correctly convey the gist of a story"Summary of this case from Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen
Paul C. Watler, Jackson Walker LLP, Dallas, TX, for Amicus Curiae A.H. Belo Corporation. Laura Lee Prather, Haynes and Boone, LLP, Austin, TX, for Amicus Curiae Reporters Committee for Freedom of the Press.
Paul C. Watler, Jackson Walker LLP, Dallas, TX, for Amicus Curiae A.H. Belo Corporation. Laura Lee Prather, Haynes and Boone, LLP, Austin, TX, for Amicus Curiae Reporters Committee for Freedom of the Press.
Cindy Olson Bourland, Law Firm of Cindy Olson Bourland, P.C., Round Rock, TX, J. Bruce Bennett, Cardwell Hart & Bennett LLP, James D. Baskin III, Jane M.N. Webre, Scott Douglass & McConnico LLP, Austin, TX, for Petitioner Byron D. Neely.
Daniel Jude Kelly, Thomas S. Leatherbury, Vinson & Elkins LLP, Dallas, TX, Lisa Bowlin Hobbs, Kuhn Hobbs PLLC, Matthew Ploeger, Law Office of Matthew Ploeger, Austin, TX, for Respondent Nanci Wilson.
Justice GUZMAN delivered the opinion of the Court, in which Justice JOHNSON, Justice WILLETT, Justice BOYD, and Justice DEVINE joined.
This is an appeal of a summary judgment granted to media defendants in a suit stemming from their investigative broadcast involving a physician. This suit, like all defamation suits, implicates the competing constitutional rights to seek redress for reputational torts and the constitutional rights to free speech and press. But we have long held that despite these concerns, we adhere to our well-settled summary judgment standards. Thus, we decide here whether the physician raised a genuine issue of material fact to defeat summary judgment and proceed to trial on his defamation claim.
Casso v. Brand, 776 S.W.2d 551, 555 n. 3 (Tex.1989) (noting that constitutional implications in defamation claims do not alter our summary judgment standards).
Truth is a defense to all defamation suits. Additionally, the Legislature has provided other specific defenses for media defendants, such as the official/judicial proceedings privilege, the fair comment privilege, and the due care provision. Here, the media defendants raised various defenses in their summary judgment motion but focused primarily on the truth defense: there is no defamation liability if the gist of the broadcast is substantially true. In the court of appeals, the media defendants mainly argued that we created a rule in McIlvain v. Jacobs that a media defendant's reporting of third-party allegations is substantially true if it accurately reports the allegations—even if the allegations themselves are false. We created no such rule in McIlvain, and the facts of this case likewise do not require us to create such a rule. While it is possible for the gist of a broadcast to be mere allegation reporting (such that the truth of such a broadcast might be measured by its accuracy), a person of ordinary intelligence could conclude that the gist of the broadcast at issue was that the physician was disciplined for operating on patients while taking dangerousdrugs or controlled substances. We hold the physician raised a genuine issue of material fact as to the truth or falsity of that gist with evidence that he was not disciplined for taking dangerous drugs or controlled substances and had never performed surgery while taking them.
.794 S.W.2d 14 (Tex.1990).
On rehearing, no party challenges our holding that we have not yet recognized a rule establishing accuracy as the test for the substantial truth of a broadcast that repeats third-party allegations. Briefing submitted in support of rehearing construes our opinion as foreclosing such a rule and as affirmatively requiring the underlying allegation be proven substantially true to prevail on the truth defense. That interpretation, however, misconstrues our holding. We conclude there is a fact issue as to the truth or falsity of the gist of the media defendants' broadcast indicating the physician was disciplined for operating on patients while taking dangerous drugs or controlled substances. Importantly, this fact issue as to truth is likewise a fact issue as to accuracy. Though the media defendants advocate for accuracy as the test for truthfulness of the gist, given our holding concerning the gist, such a rule would not shield the media defendants here. We thus, as we must, leave open the question of whether a broadcast whose gist is merely that allegations were made is substantially true if the allegations were accurately repeated. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 147 (Tex. 2012) (discussing prohibition on rendering advisory opinions).
As to the remaining defenses, the media defendants did not raise the due care provision in their summary judgment motion and have not conclusively proven the application of another defense or privilege. At trial, the media defendants may well prevail on the truth defense or on one or more of these other defenses and privileges, but they have not conclusively done so here. We therefore reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
I. Factual Background
Dr. Byron Neely is a neurosurgeon who practiced in Austin. In 1999, he installed a shunt to drain fluid from a tumor in Paul Jetton's brain. An enterobacterial infection set in, leaving Paul in a debilitated state even after 12 subsequent brain surgeries. Paul and his wife, Sheila, sued Neely and others, and Neely settled. In 2002, the Jettons filed a complaint with the Texas Medical Board (Board), and the Board investigation found no wrongdoing by Neely.
Neely also performed surgery on Wei Wu in 1999. After removing a brain tumor, Neely reported seeing small deposits of metastatic melanoma on the surface of Wu's brain during surgery. Soon after Wu recovered from the operation and learned of the melanoma deposits from his oncologist, he committed suicide. The autopsy report indicated “no residual metastatic melanoma on gross inspection,” which the coroner later clarified to mean that he believed Wu no longer had any melanoma after the operation. Wu's ex-wife sued Neely on behalf of her minor son, but the suit was dismissed on procedural grounds.
“Metastatic cancer is cancer that has spread from the place where it first started to another place in the body.” Metastatic Cancer, National Cancer Institute (Mar. 28, 2013), http:// www. cancer. gov/ cancer topics/ factsheet/ Sites– Types/ metastatic (on file with Clerk's office).
The Board also investigated the Wu case and found no wrongdoing, but that order issued after the broadcast in question.
In 2003, after a separate investigation by the Board, Neely entered into an Agreed Order (Order). In the Order, the Board found that Neely had self-prescribed medications between 1999 and 2002 and had a prior history of hand tremors. Further, the Board found that he was subject to disciplinary action due to his “inability to practice medicine with reasonableskill and safety to patients, due to mental or physical condition” and his self-prescription of medications. The Order suspended Neely's license, but stayed the suspension, placed him on probation for three years, ordered physical and psychiatric evaluations, and prohibited Neely from prescribing medications to himself or his family.
In January 2004, KEYE–TV in Austin ran a 7–minute investigative report by Nanci Wilson (collectively “KEYE”) regarding Neely. The transcript of the entire broadcast is attached as Appendix A. The broadcast began with anchor Fred Cantu asking:
If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?
Co-anchor Judy Maggio continued:
A central Texas couple says they didn't learn about this until it was too late. They're outraged the [Board] is allowing Dr. Byron Neely to continue to practice. KEYE news investigative reporter Nanci Wilson tells us if you go to St. David's Hospital with a head injury you could be Dr. Neely's next patient.
Wilson then interviewed Paul Jetton, who related that Neely recommended surgery after an MRI indicated he had a brain tumor. Wilson stated that the hospital discharged Jetton despite the fact that a bacterial infection set in at the surgical site. Wilson continued:
The result: numerous surgeries and a life of disability. Paul's wife, Sheila, says what they learned from other doctors was the final blow.
Sheila Jetton then stated:
Every neurosurgeon that's looked at Paul's MRIs from before Neely operated on him have [sic] said they would have never done surgery. They would have watched him with MRIs over years.
Wilson segued to discuss the Wu case, relating that Neely discovered and removed malignant melanoma from Wu's brain during surgery and that Wu committed suicide after learning of the diagnosis. Wilson then stated that when
the Travis County Medical Examiner's office, analyz[ed] Wu's brain [ ], examiners noted no residual metastatic melanoma. Meaning Wei Wu did not have brain cancer.
The [Board] investigated Dr. Neely. The board found Neely had a history of hand tremors and that between 1999 and 2002, Dr. Neely was writing prescriptions, not only for his patients but for himself as well. Narcotics, muscle relaxers and pain killers. Something former patient Paul Jetton finds shocking.
Paul Jetton commented:
Narcotics, opiates, I mean it's just things that, I mean things that they don't even let people operate machinery or drive cars when they're, when they're taking them and this guy's doing brain surgery on people. I mean it's just, even now I'm just, it's just incredulous, you just can't even believe that it even happened.
Wilson then related that the Order placed Neely on probation, required him to see a psychiatrist, and prohibited him from prescribing to himself or his family. Wilson interviewed a Board representative and asked:
But how would they know if he is using? He can get somebody else to prescribe him. I mean he could say, “I've followedthe order.”.... How do we, how do we know that he's, that we're not putting somebody right back out there to do the same thing he was doing before?
The Board representative responded:
That's a very good question and why this order doesn't include drug testing, I, I honestly don't know the answer to that.
The broadcast then included a statement from Paul Jetton:
I think it's just deplorable, I mean if, if it was another profession, uh, the guy would be in jail.
Wilson related a comment from Neely's attorney that
two highly qualified neurosurgeons who reviewed the case agree with the medical decisions made by Dr. Neely. In addition, the [Board] investigated the Jetton case and found no wrong doing.
Wilson noted that Neely's hospital had a pending investigation regarding whether to continue Neely's privileges. The broadcast ended by noting that the Jettons settled their suit with Neely, Wu's suit was dismissed, the other suits remained pending, and the Board posts final decisions on its website.
After the report aired, Neely claims his practice collapsed. His referrals from other physicians dwindled, existing appointments cancelled (citing the broadcast as the reason for the cancellation), his income diminished, and his home went into foreclosure. He and his professional association (collectively “Neely”) sued KEYE for libel. KEYE moved for summary judgment, which the trial court granted without specifying the grounds. Neely raised seven issues in the court of appeals, three of which are relevant here: (1) the trial court erred generally by granting summary judgment; (2) the trial court erred because Neely had probative evidence on each element of his defamation claim; and (3) there is no rule in Texas shielding media defendants from liability simply because they accurately report defamatory statements made by a third party. 331 S.W.3d 900, 914. The court of appeals held that under McIlvain v. Jacobs, 794 S.W.2d 14 (Tex.1990), none of the statements were actionable as a matter of law because KEYE accurately reported third-party allegations. 331 S.W.3d at 922, 926–28. The court of appeals affirmed the trial court's grant of summary judgment. Id. at 928.
Neely also sued Viacom, Inc., but the court of appeals held that Neely waived any challenge as to summary judgment dismissal of the claims against Viacom. 331 S.W.3d 900, 914. Neely does not contest that ruling here.
The court of appeals also affirmed the trial court's exclusion of some of Neely's summary judgment evidence. 331 S.W.3d at 928–29. Neely does not challenge that ruling here.
II. Standard of Review
We review a trial court's grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The party moving for summary judgment bears the burden of proof. Roskey v. Tex. Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex.1982). Though these burdens vary for traditional and no-evidence motions, the summary judgment motion here was a hybrid motion and both parties brought forth summary judgment evidence; therefore, the differing burdens are immaterial and the ultimate issue is whether a fact issue exists. Buck v. Palmer, 381 S.W.3d 525, 527 & n. 2 (Tex.2012). A fact issue exists if there is more than a scintilla of probative evidence. See id. at 527;Tex.R. Civ. P. 166a(c),(i). We must review the summary judgment record “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005). “In reviewing a summary judgment, we consider all grounds presented to the trial court and preserved on appeal in the interest of judicial economy.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). We have held that the constitutional concerns over defamation, discussed below, do not affect these summary judgment standards of review. Casso v. Brand, 776 S.W.2d 551, 555 n. 3 (Tex.1989).
A. Competing Constitutional Concerns
The common law has long allowed a person to recover for damage to her reputation occasioned by the publication of false and defamatory statements. Milkovich v. Lorain Journal Co., 497 U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Chief Justice Rehnquist noted that Shakespeare penned the rationale for the cause of action in Othello:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash;
'Tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
William Shakespeare, Othello, act 3 sc. 3, quoted in Milkovich, 497 U.S. at 12, 110 S.Ct. 2695. Unlike the federal Constitution, the Texas Constitution twice expressly guarantees the right to bring suit for reputational torts. SeeTex. Const. art. I, §§ 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege.”), 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” (emphasis added)).
The right to recover for defamation, however, is not the only constitutional concern at stake. Of significant import are the constitutional rights to free speech and a free press. See Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex.1994). As the United States Supreme Court has articulated, “[w]hatever is added to the field of libel is taken from the field of free debate.” New York Times Co. v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). To balance these competing interests, the United States Supreme Court through federal constitutional law, this Court through the common law, and the Legislature through statutes, have undertaken to tailor the tort of defamation so as to preserve the right to recover for reputational damages while minimally impinging on the rights to free speech and a free press. Cain, 878 S.W.2d at 582.
B. Elements of Defamation
The tort of defamation includes libel and slander. Libel occurs when the defamatory statements are in writing. Tex. Civ. Prac. & Rem.Code § 73.001. Slander occurs when the statements are spoken. Milkovich, 497 U.S. at 17, 110 S.Ct. 2695. The broadcast of defamatory statements read from a script is libel, not slander. Christy v. Stauffer Publ'ns, Inc., 437 S.W.2d 814, 815 (Tex.1969). Libel “tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation....” Tex. Civ. Prac. & Rem.Code § 73.001.
We have revised the elements of the defamation cause of action in response to the United States Supreme Court's application of constitutional principles to defamation claims. Before Sullivan, 376 U.S. at 254, 84 S.Ct. 710, the defamation plaintiff generally prevailed by proving the defendant published a statement that defamed her unless the defendant proved the truth of the statement. Pierre N. Leval, The No–Money, No–Fault Libel Suit: Keeping Sullivan in Its Proper Place, 101 Harv. L.Rev.. 1287, 1287 (1988). But the Supreme Court held in Sullivan that freedom of expression requires “breathing space,” and that if the plaintiff is a public official, she must prove the defendant had actual malice. 376 U.S. at 272, 279–80, 84 S.Ct. 710. The Court later held that public figures and limited purpose public figures must also prove actual malice, and that states may set their own level of fault for private plaintiffs. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The Court left the precise standard of fault to the states, and we have chosen a negligence standard for a private figure seeking defamation damages from a media defendant. WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998); see also Gertz, 418 U.S. at 353, 94 S.Ct. 2997 (Blackmun, J., concurring) (“[T]he Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard.”); Restatement (Second) of Torts § 580B (1977). In light of these holdings, to recover defamation damages in Texas, a plaintiff must prove the media defendant: (1) published a statement; (2) that defamed the plaintiff; (3) while either acting with actual malice (if the plaintiff was a public official or public figure) or negligence (if the plaintiff was a private individual) regarding the truth of the statement. McLemore, 978 S.W.2d at 571.
The majority of states have adopted a negligence standard for private figures, while Alaska, Colorado, Indiana, and New Jersey have adopted the actual malice standard for private figures. 1 Rodney A. Smolla, Law of Defamation § 3:31 (2d ed.1991), cited in Kaitlin M. Gurney, Myspace, Your Reputation: A Call to Change Libel Laws for Juveniles Using Social Networking Sites, 82 Temp. L.Rev.. 241, 251 & n. 97 (2009).
KEYE frames a central issue in this proceeding as the liability of a media defendant for republishing a third-party's allegedly defamatory statements. We first observe that it is a well-settled legal principle that one is liable for republishing the defamatory statement of another. See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (noting that a “newspaper may not defend a libel suit on the ground that the falsely defamatory statements are not its own”). The rule's broad application has thus brought about efforts to soften its impact, such as the Sullivan and Gertz decisions requiring a showing of fault as well as the privileges and defenses describedbelow. 1 Robert D. Sack, Sack on Defamation § 2.7.1 (3d ed.2009).
See alsoRestatement (Second) of Torts § 578 (1977) (“[O]ne who repeats or otherwise republishes defamatory material is subject to liability as if he had originally published it.”); 1 Robert D. Sack, Sack on Defamation § 2.7.1 (3d ed. 2009) (“ ‘The common law of libel has long held that one who republishes a defamatory statement adopts it as his own and is liable [for false, defamatory statements] in equal measure to the original defamer.’ ” (quoting Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1298 (D.C.Cir.1988)) (alteration in original)).
C. Privileges and Defenses
The common law and statutes provide certain defenses and privileges to defamation claims. These include the defense of truth, Tex. Civ. Prac. & Rem.Code § 73.005, which we have interpreted to require defendants to prove the publication was substantially true, Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex.2000). Moreover, statements that are not verifiable as false cannot form the basis of a defamation claim. Milkovich, 497 U.S. at 21–22, 110 S.Ct. 2695. Further, the common law has recognized a judicial proceedings privilege since at least 1772 for parties, witnesses, lawyers, judges, and jurors. Additionally, one cannot recover mental anguish damages for defamation of a deceased individual. Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 250 (1942); see alsoRestatement (Second) of Torts § 560 (1977). And a qualified privilege exists under the common law when a statement is made in good faith and the author, recipient, a third person, or one of their family members has an interest that is sufficiently affected by the statement. Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 210 (Tex.1992) (Hightower, J., concurring).
.Sack,supra note 10, § 8.2.1 (citing King v. Skinner, 1 Lofft 55, 56, 98 Eng. Rep. 529, 530 (K.B.1772), quoted in Burns v. Reed, 500 U.S. 478, 490, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)). We have long recognized this privilege in Texas. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942).
The United States Supreme Court, this Court, and the Legislature have afforded additional protections to media defendants. The United States Supreme Court and this Court long ago shifted the burden of proving the truth defense to require the plaintiff to prove the defamatory statements were false when the statements were made by a media defendant over a public concern. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); McIlvain, 794 S.W.2d at 15. This distinction is less material at the summary judgment stage where, as here, the media defendant is the movant. See Casso, 776 S.W.2d at 555 n. 3.
Neely admitted in his deposition that the public has a right to know about the Board's findings. The parties do not dispute that the defendants are members of the media. Thus, we hold that Neely must prove the falsity of the broadcast to recover damages. Hepps, 475 U.S. at 777, 106 S.Ct. 1558.
Additionally, the Legislature has crafted the official/judicial proceedings privilege, which shields periodical publications from republication liability for fair, true, and impartial accounts of judicial, executive, legislative, and other official proceedings. Tex. Civ. Prac. & Rem.Code § 73.002(b)(1). And the Legislature has also adopted the fair comment privilege, shielding periodical publications from republication liability for reasonable and fair comment on or criticism of official acts of public officials or other public concerns. Id. § 73.002(b)(2).
We previously noted that “we are reluctant to afford greater constitutional protection to members of the print and broadcast media than to ordinary citizens” because the “First Amendment affords equal dignity to freedom of speech and freedom of the press.” Casso, 776 S.W.2d at 554. But this understanding of the constitution is no impediment to the Legislature crafting additional protections for media defendants, which it has done in Chapter 73 of the Civil Practice and Remedies Code.
Notably, the Legislature has also added the due care provision for broadcasters, shielding them from liability unless the plaintiff proves the broadcaster failed to exercise due care to prevent publication of a defamatory statement. Id. § 73.004. The provision requires that:
A broadcaster is not liable in damages for a defamatory statement published or uttered in or as a part of a radio or television broadcast by one other than the broadcaster unless the complaining party proves that the broadcaster failed to exercise due care to prevent the publication or utterance of the statement in the broadcast.
Id. We have previously commented that, under the due care provision, “[b]roadcasters are generally not liable in defamation for broadcasts made by third parties.” Cain, 878 S.W.2d at 582. A number of other jurisdictions have enacted a due care provision, although some states require the defendant broadcaster to prove it used due care (as opposed to our statute, which requires the plaintiff to prove the defendant broadcaster did not use due care). KEYE did not raise the due care provision at the summary judgment stage, and thus it is not at issue in this proceeding.
See, e.g.,Cal. Civ.Code § 48.5(1); Colo. Rev. Stat. § 13–21–106; Fla. Stat. § 770.04; Ga.Code Ann. § 51–5–10(a); Iowa Code § 659.5; Ky.Rev.Stat. Ann. § 411.062; Neb.Rev.Stat. § 25–840.02(1); Or.Rev.Stat. § 31.200(1); S.D. Codified Laws § 20–11–6; Utah Code Ann. § 45–2–7; Va.Code Ann. § 8.01–49; Wyo. Stat. Ann. . § 1–29–101.
Moreover, we note that this past regular session, the Legislature passed the Defamation Mitigation Act, which requires defamation plaintiffs to request a correction, clarification, or retraction from the publisher of a defamatory statement within the limitations period for the defamation claim. Tex. Civ. Prac. & Rem.Code §§ 73.051, .054–.055 (added by H.B. 1759, 83d Leg., R.S., § 2). Under this provision, a defamation plaintiff may only recover exemplary damages if she serves the request for a correction, clarification, or retraction within 90 days of receiving knowledge of the publication. Id. § 73.055(c).
The Defamation Mitigation Act only affects publications published after its effective date and does not apply to this proceeding. H.B. 1759, 83d Leg., R.S., § 3.
D. Substantial Truth
Whether Neely raised a fact issue regarding the truth or falsity of the underlying statements is the primary issue in this appeal. We have developed the substantial truth doctrine to determine the truth or falsity of a broadcast: if a broadcast taken as a whole is more damaging to the plaintiff's reputation than a truthful broadcast would have been, the broadcast is not substantially true and is actionable. Turner, 38 S.W.3d at 115 (“the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements”); McIlvain, 794 S.W.2d at 16 (“The test used in deciding whether the broadcast is substantially true involves consideration of whether the alleged defamatory statement was more damaging to [the plaintiff's] reputation, in the mind of the average listener, than a truthful statement would have been. This evaluation involves looking to the ‘gist’ of the broadcast.” (citations omitted)); see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516–17, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (applying substantial truth defense under California law).
Assessing a broadcast's gist is crucial. A broadcast with specific statements that err in the details but that correctly convey the gist of a story is substantially true. Turner, 38 S.W.3d at 115. On the other hand, a broadcast “can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story's individual statements considered in isolation were literally true or non-defamatory.” Id. at 114. We determine a broadcast's gist or meaning by examining how a person of ordinary intelligence would view it. Id. at 114–15. “If the evidence is disputed, falsity must be determined by the finder of fact.” Bentley v. Bunton, 94 S.W.3d 561, 587 (Tex.2002).
We have also described this standard as the “average listener” standard. McIlvain, 794 S.W.2d at 16.
KEYE contends the trial court properly granted summary judgment because: (1) KEYE accurately reported third-party allegations, which satisfies our test for substantial truth; (2) the broadcast is privileged under the fair comment and official proceeding privileges; (3) Neely is a limited purpose public figure and there is no evidence of actual malice; (4) there is no evidence of negligence; and (5) Neely's professional association cannot maintain a defamation action. We address each argument in turn.
To address KEYE's first issue, we analyze our holding in McIlvain. KEYE contends that in McIlvain, we transformed the substantial truth doctrine to shield media defendants from defamation liability for publishing third-party allegations if the defendants show that the underlying allegations (1) were made, and (2) were accurately reported.
McIlvain concerned a broadcast about an investigation by the City of Houston into alleged misconduct by employees in its water maintenance division. 794 S.W.2d at 15. The broadcast indicated that the public integrity section was investigating allegations that: (1) employees cared for the elderly father of a manager on city time; (2) employees were putting in for overtime to complete their city duties later; (3) authorities were looking for a gun at a water treatment facility; and (4) employees had been drinking on the job. Id. Two of the employees sued the broadcasters for defamation. Id. The city's investigation later found all the allegations to be true. Id. at 16. The trial court granted summary judgment in favor of the media defendants. Id. at 15. We affirmed the trial court's ruling because the “broadcast statements are factually consistent with [the government's] investigation and its findings ” and were thus “substantially correct, accurate, and not misleading.” Id. at 16 (emphasis added).
Since McIlvain, several courts of appeals and the Fifth Circuit have interpreted it to mean that media reporting of third-party allegations under investigation is substantially true if the media accurately reports the allegations and the existence of any investigation. KEYE similarly asserts that our holding in McIlvain created a substantial truth defense for accurately reporting third-party allegations. But the parties do not assert and we cannot locate such a rule in any other jurisdiction. See, e.g., Restatement (Second) of Torts § 581A, cmt. e (1977). We did not establish a third-party allegation rule in McIlvain. Rather, we measured the truth of the allegations in McIlvain against the government investigation that found them to be true. Id. In other words, a government investigation that finds allegations to be true is one of many methods of proving substantial truth. But we do not foreclose the possibility that the gist of some broadcasts may merely be allegation reporting, such that one measure for the truth of the broadcast could be whether it accurately relayed the allegations of a third party. See, e.g., Global Relief Found., Inc. v. New York Times Co., 390 F.3d 973, 986 (7th Cir.2004) (broadcast that government was investigating a nonprofit organization's alleged funding of terrorism was substantially true based upon government affidavits indicating it was investigating the reported allegations). As addressed below, even if we adopted such a rule today, it could not enable KEYE to prevail here because there is a genuine issue of material fact as to whether Neely was disciplined for the conduct the broadcast suggests.
See Green v. CBS, Inc., 286 F.3d 281, 284 (5th Cir.2002); 331 S.W.3d at 922;Grotti v. Belo Corp., 188 S.W.3d 768, 775 (Tex.App.–Fort Worth 2006, pet. denied); Associated Press v. Boyd, No. 05–04–01172–CV, 2005 WL 1140369, at *3 (Tex.App.–Dallas May 16, 2005, no pet.); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 612 (Tex.App.–San Antonio 2002, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 918 (Tex.App.–Houston [14th Dist] 2000, pet. denied); Am. Broad. Cos., Inc. v. Gill, 6 S.W.3d 19, 33 (Tex.App.–San Antonio 1999, pet. denied); KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex.App.–Houston [14th Dist.] 1997, no writ).
As amicus The Dallas Morning News observes, our ruling that McIlvain did not create a third-party allegation rule does not necessarily mean the previous cases misinterpreting McIlvain reached incorrect results. Specifically, The Dallas Morning News observes that the following cases nonetheless properly held that the gist of the statements were substantially true: Green, 286 F.3d at 284–85; Boyd, 2005 WL 1140369, at *3; Ardmore, Inc., 82 S.W.3d at 612; Randolph, 19 S.W.3d at 921. Amicus Br. of The Dallas Morning News on Rehearing, at 8–11.
2. Gist of the Broadcast
The broadcast at issue began by asking listeners if they would want to know “if your surgeon had been disciplined for prescribing himself and taking dangerous drugs.” The broadcast discusses the Jetton and Wu cases and then states that the Board “did discipline Neely.” After discussing the Order, the broadcast contains the following statement by Paul Jetton:
We have previously stated that an introduction can be especially misleading. See Turner, 38 S.W.3d at 118.
Narcotics, opiates, I mean it's just things that, I mean things that they don't even let people operate machinery or drive cars when they're, when they're taking them and this guy's doing brain surgery on people. I mean it's just, even now I'm just, it's just incredulous, you just can't even believe that it even happened.
Wilson then asked a Board representative how the Board would know Neely was not using the medications again: “But how would they know if he is using? He can get somebody else to prescribe him. I mean he could say, ‘I've followed the order.’ ”
We determine the gist through the lens of a person of ordinary intelligence. Turner, 38 S.W.3d at 114–15. Neely asserts that a person of ordinary intelligence could conclude that the gist of the broadcast, based on the content and placement of these statements, was that Neely was disciplined for operating on patients while using dangerous drugs or controlled substances. KEYE maintains that the gist of the broadcast “concerned controversies and allegations surrounding Neely's care of Jetton and Wu, the malpractice lawsuits filed by Jetton and Wu's ex-wife, an autopsy report by the Travis County [Medical Examiner], a public disciplinary action by the Medical Board, and Neely's responses to the allegations.” We agree with Neely that a person of ordinary intelligence could conclude the gist of the broadcast was that Neely was disciplined for operating on patients while using dangerous drugs or controlled substances.
Neely also asserts the broadcast includes gists that he was performing unnecessary surgeries and was unsafely operating on patients while experiencing hand tremors. We need not assess the substantial truth of the gist that Neely was performing unnecessary surgery because these statements are protected by the official/judicial proceedings privilege. See infra Part III.E. And we need not assess the gist regarding Neely's hand tremors in light of our disposition regarding the gist that he was disciplined for operating on patients while using dangerous drugs and controlled substances. See infra Part III.D.3–III.F.
3. Substantial Truth of the Broadcast's Gist
To prevail at summary judgment on the truth defense, KEYE must conclusively prove that this gist is substantially true. Turner, 38 S.W.3d at 114–15. As we explained in Turner, although the specific statements in a broadcast may be substantially true when viewed in isolation, the gist can be false by omitting or juxtaposing facts. Id. We examine whether the gist was more damaging to the plaintiff's reputation, in the mind of a person of ordinary intelligence, than a truthful statement would have been. Id.
When a private figure sues a media defendant over defamatory statements that are of public concern, the plaintiff has the burden of proving falsity. Hepps, 475 U.S. at 777, 106 S.Ct. 1558. But this distinction is less material at summary judgment. Casso, 776 S.W.2d at 555 n. 3.
A reasonable view of the gist of the broadcast is that Neely was disciplined for operating on patients while using dangerous drugs or controlled substances. Unlike in McIlvain, the government investigation (here from the Board Order) does not indicate that this allegedly defamatory statement was correct. The Order disciplined Neely for prescribing himself dangerous drugs or controlled substances. It did not discipline Neely for taking or using dangerous drugs or controlled substances. The Board found that Neely's medications were “legitimately and appropriately prescribed” by treating physicians but that Neely “began to refill the medications himself in lieu of scheduled visits.” Further, section 164.051(a)(4) of the Occupations Code allows the Board to suspend a license if the physician is unable to practice medicine with reasonable skill and safety to patients because of “excessive use of drugs” or “mental or physical condition.” Tex. Occ.Code § 164.051(a)(4)(C)–(D). When citing to section 164.051(a)(4), the Order only noted Neely's “mental or physical condition” as grounds for discipline, not any excessive use of drugs. And rather than concluding that Neely's self-prescribing affected his ability to practice medicine (as it apparently did with his mental or physical condition), the Board concluded that Neely's self-prescribing instead violated a then newly-created rule that self-prescribing dangerous drugs or controlled substances in certain situations is not “an acceptable professional manner consistent with public health and welfare.” 22 Tex. Admin. Code § 190.8(1)(M) (Tex. State Bd. of Med. Examiners, Disciplinary Guidelines) (added by 28 Tex. Reg. 10496 (2003)). Thus, the Order reflects that Neely was disciplined for self-prescribing dangerous drugs or controlled substances, not for taking them.
In addition, Neely brought forth evidence that he was not operating on patients while taking or using dangerous drugs or controlled substances:
Uncontroverted summary judgment evidence from an interested witness is only sufficient to raise a fact issue, unless the evidence is clear, direct, positive, can be readily controverted, and there are no circumstances tending to impeach or discredit the testimony. SeeTex.R. Civ. P. 166a(c); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Because Neely's evidence is only used to raise a fact issue here, we need not assess whether his testimony is clear, direct, positive, can be readily controverted, or could be impeached or discredited.
• Wilson reported not finding any independent evidence that Neely performed surgery while impaired.
• Neely retained Dr. Edgar Nace—a former vice president of the Board who was board certified in clinical, addiction, and forensic psychiatry—to conduct a psychiatric and substance abuse evaluation of Neely during the Board investigation. Among other things, Nace reviewed Neely's pharmacy records and performed a drug test. Nace determined that Neely “has not been and is not currently diagnosable with a substance use disorder—neither abuse nor dependence.” Nace noted that Neely's dosage of hydrocodone was lower than with emerging patterns of abuse or addiction and Neely's use of only one pharmacy was inconsistent with a pattern of abuse or addiction. Nace concluded that Neely's “prescriptions and subsequent refills have been appropriate to his documented diagnosis” for a torn rotator cuff, diverticulitis, and asthma.
• Neely used hydrocodone primarily in 2000 and part of 2001 to treat a torn rotator cuff. He ceased using hydrocodone in April 2003.
• Neely ceased using steroids, prescribed for asthma, in 2000, when he began using an inhaler.
• As of October 2003, Neely was using medications for asthma (Advair, Ventolin), allergies (Actifed, Benadryl, Flonase), high blood pressure (Cardura), and colon issues (Lomotil), none of which are controlled substances.
Based on Neely's responsive evidence, we hold that a there is a fact issue regarding the truth or falsity of the gist that Neely was disciplined for operating on patients while taking or using dangerous drugs or controlled substances. Turner, 38 S.W.3d at 117–18 (holding that, especially in light of a broadcast's introduction, a viewer could believe in a gist of the broadcast that was not substantially true); McIlvain, 794 S.W.2d at 16. As in Turner, we note that even an accurate account of Neely that did not create a false impression “may have raised troubling questions.” 38 S.W.3d at 118. But because the factfinder may conclude that the gist was more damaging to Neely's reputation than a truthful and accurate broadcast would have been, the substantial truth defensecannot support the trial court's summary judgment.
Neely also offered other evidence the trial court excluded, which Neely does not challenge on appeal. This evidence included: (1) the Board orders finding no wrongdoing with Neely's treatment in the Jetton and Wu cases; (2) Neely's statement that he only took narcotic medications at night; (3) the psychiatric evaluation conducted pursuant to the Board Order that concluded that Neely's “use of the self-prescribed opiates does not suggest that he ever had a problem with abuse or dependence;” and (4) the fact that the Board terminated its Order early, less than half way through the three-year probationary period.
E. Official/Judicial Proceedings Privilege
KEYE next asserts that the trial court's grant of summary judgment was proper because the broadcast was protected by the official/judicial proceedings privilege. The United States Supreme Court has long recognized a common law judicial privilege. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Underpinning the judicial privilege is the notion that a “trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt.” Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). In Texas, the Legislature codified the judicial proceedings privilege and expanded it to other official proceedings. Section 73.002 of the Civil Practice and Remedies Code provides that publications are privileged if they are “a fair, true, and impartial account of” judicial or other proceedings to administer the law. Tex. Civ. Prac. & Rem.Code § 73.002(b)(1).
The official/judicial proceedings privilege assesses whether the reporter's account of the proceedings (not the underlying allegations made in those proceedings) was fair, true, and impartial. Denton Publ'g Co. v. Boyd, 460 S.W.2d 881, 883 (Tex.1971). When construing a substantially similar prior version of the official/judicial proceedings privilege, we held that “[t]he publication would be within the privilege provided by statute as long as it purported to be, and was, only a fair, true and impartial report of what was stated at the meeting, regardless of whether the facts under discussion at such meeting were in fact true....” Id. at 882;see also Herald–Post Publ'g Co. v. Hill, 891 S.W.2d 638, 639 (Tex.1994) (comparing allegedly defamatory article to trial testimony to determine that judicial proceeding privilege applied).
But the privilege only extends to statements that: (1) are substantially true and impartial reports of the proceedings, and (2) are identifiable by the ordinary reader as statements that were made in the proceeding. Boyd, 460 S.W.2d at 884. In Boyd, there was a factual dispute as to whether a false statement that a contractor was bankrupt was made at a city council meeting. Id. at 884–85. When remanding to resolve the factual dispute, we concluded the privilege would apply if: (1) the statement was made at the city council meeting, and (2) an ordinary reader of the defendant's article would understand the statement was made at the meeting. Id. at 885.
We see no substantive difference from our ordinary reader standard for the judicial proceedings privilege in Boyd, 460 S.W.2d at 884–85, and our person of ordinary intelligence standard for substantial truth in Turner, 38 S.W.3d at 114–15.
1. Unnecessary Surgery
One gist of the KEYE broadcast we have not previously addressed is that Neely was performing unnecessary surgeries. This gist results from the inclusion of the statement by Sheila that “[e]very neurosurgeon that's looked at Paul's MRIs from before Neely operated on him have [sic] said they would have never done surgery. They would have watched him with MRIs over years.” The placement of this statement within the broadcast was in the discussion of Neely's treatment of Paul and the resulting lawsuit. The allegation that Neely performed unnecessary surgery was one basis for the lawsuit, in which the Jettons alleged that, “[a]t the time [Neely and a fellow doctor] performed such procedure, they ostensibly did so to treat symptomatic hydrocephalus in Paul Jetton. However, Paul Jetton did not have symptomatic hydrocephalus.” We hold that an ordinary viewer could conclude that Sheila's allegation regarding unnecessary surgery in the broadcast was made in the Jetton lawsuit. Id. at 884. Thus, KEYE met its initial burden of proving this statement is protected by the conditional judicial proceedings privilege. See id. (holding that the defendant has the initial burden of proving a publication is privileged).
See supra note 20.
But Neely can rebut the privilege by proving it is inapplicable. Id. The judicial/official proceedings privilege “does not extend to the republication of a matter if it is proved that the matter was republished with actual malice after it had ceased to be of public concern.” Tex. Civ. Prac. & Rem.Code § 73.002(a). Actual malice means the defendant made the statement “ ‘with knowledge that it was false or with reckless disregard of whether it was true or not;’ ” and reckless disregard means “ ‘the defendant in fact entertained serious doubts as to the truth of his publication.’ ” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex.2004) (quoting Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 420 (Tex.2000) and Bentley, 94 S.W.3d at 591);see also Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex.2005). Sheila's statement that every neurosurgeon would have not performed surgery was controverted by the two neurosurgeons who agreed with Neely's treatment of Paul and the Board order finding no wrongdoing in Neely's treatment of Paul. KEYE's inclusion of this disclaiming information negates any allegation that KEYE acted with actual malice as to the gist of the broadcast that Neely was performing unnecessary surgery and the record contains no other evidence that creates a fact issue on this point. Accordingly, the official/judicial proceedings privilege shields this portion of the broadcast. Tex. Civ. Prac. & Rem.Code § 73.002(a); Boyd, 460 S.W.2d at 884.
2. Disciplined for Operating on Patients While Taking Dangerous Drugs or Controlled Substances
We next analyze whether the gist of the broadcast that Neely was disciplined for operating on patients while taking dangerous drugs or controlled substances is protected by the official/judicial proceedings privilege. This gist is explained in part by the anchor's introduction to the broadcast, which asked:
If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs ... ?
As previously addressed, the evidence creates a fact issue as to whether the assertion that Neely had been disciplined for “taking dangerous drugs” is a fair, true, and impartial account of the Board Order. The Board found Neely's self-prescribing to be inappropriate—not his taking or using the medications. The Board found that the medications were “legitimately and appropriately prescribed” but that Neely “began to refill the medications himself in lieu of scheduled visits.” Accordingly, a jury may conclude that the Order disciplined Neely for his “inappropriate prescription of dangerous drugs or controlled substances to oneself.” Thus, we cannot say that—as a matter of law—the statement that Neely was disciplined for taking or using dangerous drugs or controlled substances was a fair, true, and impartial account of an official or judicial proceeding. Boyd, 460 S.W.2d at 883.
F. Fair Comment Privilege
KEYE also maintains that the fair comment privilege applies to the broadcast. Section 73.002(b)(2) provides that a broadcast is privileged if it is a “reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information.” Tex. Civ. Prac. & Rem.Code § 73.002(b)(2). Comments based on substantially true facts are privileged if fair; comments that assert or affirm false statements of fact are not privileged. We long ago stated that it “is the settled law of Texas, that a false statement of fact concerning a public officer, even if made in a discussion of matters of public concern, is not privileged as fair comment.” Bell Publ'g Co. v. Garrett Eng'g Co., 141 Tex. 51, 170 S.W.2d 197, 204 (1943); see also Barbouti v. Hearst Corp., 927 S.W.2d 37, 52 (Tex.App.–Houston [1st] 1996, writ. denied) (false statements not privileged as fair comments). The Legislature has extended the fair comment privilege to matters of public concern, Tex. Civ. Prac. & Rem.Code § 73.002(b)(2), and we have come to interpret the truth defense as requiring only substantial truth, Turner, 38 S.W.3d at 115. Substantial truth assesses whether the gist of the broadcast is substantially true, and a broadcast can convey a substantially false meaning by juxtaposing facts that, viewed in isolation, are true. Id. Joining these principles, we conclude that a comment based on a substantially true statement of fact can qualify as a fair comment. Tex. Civ. Prac. & Rem.Code § 73.002(b)(2). But if a comment is based upon a substantially false statement of fact the defendant asserts or conveys as true, the comment is not protected by the fair comment privilege. Bell, 170 S.W.2d at 204.
As we noted above, this broadcast addressed a matter of public concern. See supra note 12.
KEYE's broadcast opened by asking viewers if they would want to know if their doctor “had been disciplined for prescribing himself and taking dangerous drugs....” Wilson's questioning of whether the Order would prevent Neely from using the drugs was predicated on the statement that Neely had been disciplined for taking or using dangerous drugs or controlled substances—which the broadcast affirmed to be true. Because a fact issue exists on whether the statement was true, KEYE is not entitled to summary judgment based on the fair comment privilege. Bell, 170 S.W.2d at 204.
G. Limited Purpose Public Figure
KEYE also asserts that Neely was a limited purpose public figure who therefore had to prove malice. We disagree.
Public figure status is a question of law for the court. McLemore, 978 S.W.2d at 571. We use a three-part test to assess whether an individual is a limited purpose public figure:
(1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential role in the controversy; and
(3) the alleged defamation must be germane to the plaintiff's participation in the controversy.
Id. In McLemore, we expressly reserved the question of whether an individual may meet the public controversy requirement against her will. Id. at 571–72.
The distinction between public and private figures matters chiefly because public and limited purpose public figures must prove a defamation defendant acted with actual malice. Gertz, 418 U.S. at 342, 94 S.Ct. 2997. The United States Supreme Court addressed this distinction in Gertz:
[p]ublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case....
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
Id. at 344–45, 94 S.Ct. 2997. Thus, the Court was concerned with both access to communication to rebut a defamatory statement and the normative considerations of public figures typically having “thrust themselves to the forefront of particular public controversies.” Id. at 345, 94 S.Ct. 2997. The Court later stated that “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). In other words, the allegedly defamatory statement cannot be what brought the plaintiff into the public sphere; otherwise, there would be no private figures defamed by media defendants.
The Court's forecast that it would be “exceedingly rare” for a person to become a public figure involuntarily has proven true: neither the United States Supreme Court nor this Court has found circumstances in which a person involuntarily became a limited-purpose public figure. See, e.g., Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 166, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) (holding an individual to not be a limited-purpose public figure who was “dragged unwillingly into the controversy”); Time, Inc. v. Firestone, 424 U.S. 448, 454–55, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) (holding an individual to not be a public figure, in part, because she had done nothing voluntary to assume special prominence).
On these facts, we cannot say this is the exceedingly rare case in which a person has become a limited-purpose public figure against his will. Before the broadcast in question, Neely was mentioned in a 1996 newspaper article about settling a malpractice lawsuit and a December 2003 newspaper statement that Neely was placed on probation for self-prescribing medications. Neely was not quoted in either article. Neely also refrained from talking to Wilson regarding the broadcast at issue. Because Neely is not a limited-purpose public figure, he need not prove actual malice, and this ground cannot support the trial court's summary judgment.
H. Evidence of Negligence
KEYE next argues that the trial court properly granted summary judgment because there was no evidence of negligence. For the purposes of defamation liability, a broadcaster is negligent if she knew or should have known a defamatory statement was false. Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 820 (Tex.1976). But that liability may not be predicated on “a factual misstatement whose content [would] not warn a reasonable prudent editor or broadcaster of its defamatory potential.' ” Id. (quoting Gertz, 418 U.S. at 348, 94 S.Ct. 2997) (alteration in original).
The broadcast opened by asking viewers if they would want to know if their doctor “had been disciplined for prescribing himself and taking dangerous drugs....” Neely raised a fact issue as to the truth or falsity of the gist that he was disciplined for taking medications. See supra Parts III.D.3 and III.E. This creates a fact issue regarding whether the statement in the broadcast that Neely had been disciplined for taking medication would warn a reasonably prudent broadcaster of its defamatory potential. Foster, 541 S.W.2d at 820.
I. Professional Association
Finally, KEYE argues that professional associations cannot maintain defamation claims and thus the claim by Neely's professional association must be dismissed. We disagree.
Our precedent makes clear that corporations may sue to recover damages resulting from defamation. Gen. Motors Acceptance Corp. v. Howard, 487 S.W.2d 708, 712 (Tex.1972); Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 893 (1960). In Howard, Howard Motor Company, Inc. and its owner, Hugh Howard, both sued General Motors Acceptance Corporation (GMAC), alleging it had libeled them in a letter to Howard's bank. 487 S.W.2d at 709–10. GMAC argued that our holding in Matthews precludes corporations from maintaining causes of action for libel. Id. at 712. We rejected that assertion, pointing out that Matthews specifically recognized that a corporation may be libeled. Id. Accordingly, we permitted Howard Motor Company, Inc., a corporate entity, to maintain a libel suit against GMAC. See id.
The Legislature has endowed professional associations with many of the same privileges that corporations enjoy. Indeed, the Business Organizations Code specifies that, “[e]xcept as provided by Title 7, a professional association has the same powers, privileges, duties, restrictions, and liabilities as a for-profit corporation.” Tex. Bus. Orgs. CodeE § 2.108. Nothing in Title 7 of the Business Organizations Code precludes professional associations from bringing defamation suits. See id. chs. 301–02. Because professional associations share the same rights as for-profit corporations as to maintaining defamation claims, Texas law does not preclude the professional association, Byron D. Neely, M.D., P.A., from maintaining a libel suit.
While professional associations may maintain defamation claims, recovery by the association and its members for the same particular injury is a precluded double recovery. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex.2006) (“There can be but one recovery for one injury, and the fact that ... there may be more than one theory of liability[ ] does not modify this rule.” (quoting Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex.1991)) (alterations in original)). Instead, it is for the trier of fact to simply determine what portion, if any, of the total damages inflicted were incurred by each entity.
IV. Response to the Dissent
The dissent would hold that the broadcast was substantially true as a matter of law because there was circumstantial evidence that Neely could have been under the influence of dangerous drugs and controlled substances while operating on patients, and that the Board, though not expressly disciplining Neely for taking medications, implicitly did so. 418 S.W.3d 52, 80 (Jefferson, C.J., dissenting). But at summary judgment, “[w]e must review the record ‘in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.’ ” Buck, 381 S.W.3d at 527 (quoting City of Keller, 168 S.W.3d at 824) (emphasis added). The dissent disregards these principles in two ways. First, the dissent ignores Neely's evidence, which includes the Board Order indicating its discipline of him was not for his use of medications, evidence that Neely never performed surgery while impaired, that his evaluation prior to the Board Order indicated he never had a drug abuse or dependence problem, and that Wilson never found any independent evidence that Neely performed surgery while impaired.
The dissent believes this evidence that Neely was not operating while impaired is immaterial to the gist of whether he was disciplined for operating on patients while taking dangerous drugs. 418 S.W.3d at 81 (Jefferson, C.J., dissenting). This is precisely why we first examined the Board Order itself to determine whether it disciplined Neely for the conduct the gist of the broadcast indicates. See supra Part III.D.3. Neely's additional evidence supports why the Order did not discipline him for operating on patients while taking dangerous drugs. And if evidence of Neely's use of medication is truly as irrelevant as the dissent suggests, one wonders why the dissent only finds support in this very type of evidence.
Second, the dissent inverts our time-honored summary judgment standard by indulging every reasonable inference and resolving every doubt against Neely. Its foremost implicit finding against Neely is that the Board disciplined him for taking medications. 418 S.W.3d at 81 (Jefferson, C.J., dissenting). The dissent indicates that it “is not hard to understand the Board's concerns” regarding Neely's use of medications. Id. But the Board Order did not discipline Neely for taking medications, it disciplined him for self-prescribing them. The Order states, in relevant part:
FINDINGS OF FACT
6. [Neely] suffered various injuries and ailments, which required a variety of medications. [Neely's] treating physician legitimately and appropriately prescribed a number of medications to treat these conditions. However, between 1999, and 2002, [Neely] began to refill the medications himself in lieu of scheduled visits.
7. Upon review of statements of [Neely] and the September 27, 2000 medical records of [Neely] obtained from his treating physician, the Panel concluded that [Neely] had a prior history of tremors.
CONCLUSIONS OF LAW
2. [Neely] is subject to action by the Board under Sections 164.051(a)(4) and 164.056 of the Act due to [Neely's] inability to practice medicine with reasonable skill and safety to patients, due to mental or physical condition.
3. [Neely] is subject to disciplinary action pursuant to Section 164.051(a)(3) of the Act by committing a direct or indirect violation of a rule adopted under this Act, either as a principal, accessory, or accomplice, to wit, Board Rule 190.1(c)(1)(M)— inappropriate prescription of dangerous drugs or controlled substances to oneself, family members, or others in which there is a close personal relationship.
(Emphases added.) The first conclusion of law above references section 16 4.051(a)(4) of the Occupations Code, which allows the Board to discipline a person for illness, drunkenness, “excessive use of drugs, narcotics, chemicals, or another substance,” or “a mental or physical condition.” Tex. Occ.Code § 164.051(a)(4). The Order states that it was disciplining Neely “due to mental or physical condition”—not excessive drug use as the dissent reads between the lines to infer. At a minimum, the Order at least creates a fact issue in Neely's favor as to whether he was disciplined for taking medications. If one does endeavor to draw inferences and resolve doubts, they must be drawn and resolved in favor of Neely at this summary judgment stage. Buck, 381 S.W.3d at 527.
The dissent relies on a statement by a Board investigator in its “summary of allegations” that Neely could be subject to disciplinary action under section 164.051(a)(4) for “[i]nability to practice medicine with reasonable skill and safety because of illness or substance abuse” (emphasis added), and a statement on the Board's website that its investigation of Neely “was based on allegations that Dr. Neely had self-prescribed medications with the potential to interfere with his ability to perform surgery.” 418 S.W.3d at 82 (Jefferson, C.J., dissenting) (emphases added). The Board Order ultimately did not discipline Neely under section 164.051(a)(4) for substance abuse but only for a “mental or physical condition,” which was his hand tremor. Though the Board did not discipline Neely for taking medications, a reasonable view of the gist of the broadcast was that Neely had been so disciplined.
In its effort to indulge reasonable inferences against Neely, the dissent also relies on an Austin American Statesman article that indicates Neely was one of six Austin doctors the Board had recently disciplined for “violations involving either drug or alcohol abuse.” 418 S.W.3d at 82 (Jefferson, C.J., dissenting). But the specific reference to Neely was that he was disciplined “for self-prescribing medications, according to board records.” We find nothing questionable about this specific reference to Neely. To the extent that KEYE attempts to rely on the categorical statement in the newspaper article, the common law does not generally allow a defendant to escape defamation liability by claiming that another originated the statement. See supra note 3 and accompanying text. Nor does the gist of the article appear to be that Neely was disciplined for operating on patients while using dangerous drugs and controlled substances.
In addition, the dissent further draws inferences against Neely by assuming that the Board's order for Neely to undergo a psychiatric evaluation indicates the Board must have been concerned about Neely's use of medications. On the contrary, the Board Order notes that Neely retained a doctor to perform a physical examination who detected no medically significant tremor but “felt unqualified to determine [Neely's] ability to perform surgery, and recommended a disability assessment or a Neuro-psyche evaluation.” Neely then retained Dr. Nace to perform the psychiatric evaluation the physical examination recommended. The Board then followed the same model, “requesting independent physical and psychiatric evaluations to determine [Neely's] capacity to practice medicine in general, and specifically, to perform surgery.” Far from disciplining Neely for operating on patients while taking medications, the Order simply confirmed a psychiatric evaluation was needed because a physical evaluation alone might not fully assess the impact of Neely's hand tremor on his ability to perform surgery.
Moreover, by inverting the standard of review for summary judgments, the dissent prematurely cuts off Neely's right to a trial on this reputational tort. Our constitution assures that the “right of trial by jury shall remain inviolate.” Tex. Const. art. I, § 15. Additionally, the Texas Constitution's free speech clause guarantees the right to bring reputational torts: “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege ....” Tex. Const. art. I, § 8 (emphasis added). Likewise, the open courts provision guarantees the right to bring reputational torts: “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Tex. Const. art. I, § 13 (emphasis added). As we observed in Casso,
While we have recently recognized the possibility that our state free speech guarantee may be broader than the corresponding federal guarantee, that broader protection, if any, cannot come at the expense of a defamation claimant's right to redress. Unlike the United States Constitution, which contains no explicit guarantee of the right to sue for defamation, the Texas Constitution expressly protects the bringing of reputational torts.
776 S.W.2d at 556 (emphasis added) (citation omitted). In short, the dissent's upending of our time-honored summary judgment principles infringes upon Neely's constitutional right to bring suit for reputational torts and to have a jury trial.
The dissent also attempts to use a discrete portion of the broadcast that, standing alone, could appear to be substantially true to vindicate the remainder of the broadcast. The dissent focuses on the portion of the broadcast addressing Neely's hand tremors as justification for the broadcast being substantially true as a matter of law. But the broadcast references Neely's hand tremors twice in the seven-minute segment. Drugs or medications are expressly referenced eight times and discussed without naming those precise terms a number of other times. The dissent's analysis falls short of respect for our precedent dictating the manner in which we review substantial truth. Turner, 38 S.W.3d at 115 (“[T]he meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements.”).
Additionally, the dissent contends that a report about a government investigation is always substantially true. 418 S.W.3d at 83 (Jefferson, C.J., dissenting). In Texas, the Legislature long ago protected reports about government investigations under the official/judicial proceedings privilege. Tex. Civ. Prac. & Rem.Code § 73.002(b)(1). But as explained above, the privilege only protects such reports if they are fair, true, and impartial accounts of such proceedings. Id. There is at least a fact issue on whether the broadcast was a fair, true, and impartial account of the Board Order because the gist of the broadcast to a person of ordinary intelligence could be that Neely was disciplined for taking dangerous drugs and controlled substances when the Order indicates he was not so disciplined. See Part III.E, supra.
The dissent's reliance on Global Relief Foundation, 390 F.3d at 973, only furthers our conclusion. There, the New York Times prevailed on the truth defense because it was substantially true that the government was suspicious about Global Relief funding terrorism. Id. at 986. Global Relief's affidavits indicating it did not fund terrorism did not render false the media statements about the government's suspicions. Id. at 983. The present case would be more akin to the New York Times reporting that Global Relief had been convicted of something it had not been convicted of. See id. at 987 (“none of the articles concluded that [Global Relief] was actually guilty of the conduct for which it was being investigated”).
Finally, the dissent perceives that our holding “collides violently with the First Amendment.” 418 S.W.3d at 88 (Jefferson, C.J., dissenting). But the United States Supreme Court has only discussed the truth defense as a creature of state common law and not the First Amendment. Masson, 501 U.S. at 516, 111 S.Ct. 2419 (“The common law of libel ... overlooks minor inaccuracies and concentrates upon substantial truth.”). Accordingly, the only collision is between the dissent's implicit findings and our six-decade-old standard for reviewing summary judgments. See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952) (requiring a trial court at summary judgment to give the nonmovant “the benefit of every reasonable inference which properly can be drawn in favor of his position” and that if “a mere ground of inference” supports the motion, it will not be granted).
The key question in this appeal is whether Neely raised a fact issue as to the truth or falsity of the broadcast at issue in his defamation suit. We examine substantial truth based on what a person of ordinary intelligence would understand the gist or meaning of the broadcast to be. Here, a person of ordinary intelligence could conclude that the gist of the broadcast was that Neely was disciplined for operating on patients while using dangerous drugs and controlled substances. Neely raised a genuine issue of material fact as to the truth or falsity of that gist with evidence that he was not disciplined for taking dangerous drugs or controlled substances and he never performed surgery while using dangerous drugs or controlled substances. We further conclude: (1) there are fact issues on whether part of the broadcast is protected by the judicial/official proceedings or fair comment privileges; (2) Neely was not a limited purpose public figure; (3) Neely raised a fact issue as to KEYE's negligence; and (4) Neely's professional association may maintain a cause of action for defamation. We reverse the judgment of the court of appeals and remand the case to trial court for further proceedings consistent with this opinion.
KEYE January 19, 2004 Broadcast
Fred Cantu (Anchor): If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?
Judy Maggio (Anchor): A central Texas couple says they didn't learn about this until it was too late. They're outraged the [Texas Medical Board] is allowing Dr. Byron Neely to continue to practice. KEYE news investigative reporter Nanci Wilson tells us if you go to St. David's Hospital with a head injury you could be Dr. Neely's next patient.
Paul Jetton: I've been in, in and out of the hospital, you know, for the last four years. Uh, I had twelve, I believe, I've even lost count, I believe twelve brain surgeries, one spinal surgery.
Wilson: This is Paul Jetton's life.
Paul Jetton: I can't walk. You know, I still, I can walk with a walker, but I still can't walk on my own.
Wilson: Each step is a struggle, but it wasn't always this way. In 1982 Paul Jetton was a linebacker for the University of Texas. He was so good he went on to play in the pros. His first year with the Cincinnati Bengals the team went to the Super Bowl. But in 1999 ...
Paul Jetton: I just wasn't feeling well. When I went, you know, for I just wanted to get a physical.
Wilson: Something unusual showed up on the MRI scan of his brain.
Paul Jetton: He told me that I had this, this tumor in my brain and, and that I had to, had to have it operated on.
Wilson: His doctor, Austin neurosurgeon Byron Neely, who has been in practice since 1977, said an operation would help.
Paul Jetton: You know it would only be a two hour surgery and that I'd be in, I'd only be in the hospital for two or three days and I'd go on with the rest of my life.
Wilson: The two hour surgery stretched into almost eight hours and Paul was in the hospital for six weeks. While in the hospital Paul developed an infection in his brain. However, he was discharged from the hospital anyway. The result: numerous surgeries and a life of disability. Paul's wife, Sheila, says what they learned from other doctors was the final blow.
Sheila Jetton: Every neurosurgeon that's looked at Paul's MRIs from before Neely operated on him have [sic] said they would have never done surgery. They would have watched him with MRIs over years.
Wilson: The Jettons aren't the only patients to raise questions about Dr. Neely. Wei Wu, a software engineer with two PhDs was referred to Dr. Neely. Neely explains the case in this deposition from 2002.
Dr. Neely: [From the video of his deposition] He came in very confused one day, uh, was found to have a uh, very major brain tumor thought to be a meningioma at the time because it, of the location in the brain. Uh, the patient was taken to the OR thereafter and found to malignant melanoma [sic].
Wilson: Peter Gao was a friend of Wei Wu's. Gao says Wu struggled with the diagnosis that Wu had only a few months to live.
Peter Gao: The doctor is more like persuasive say, well the doctor have seen when he open, when he opened your skull, seen everywhere. So, all we need to do right now I guess, is face, kind of like to face the music.
Wilson: It may have been too much for Wei Wu to handle. A few days later Gao found Wu's abandoned car near the 183 overpass at Mopac. Then discovered Wu had jumped off the overpass taking his own life. But when his body was sent to the Travis County Medical Examiner's office, analyzing Wu's brains, examiners noted no residual metastatic melanoma. Meaning Wei Wu did not have brain cancer. Both the Jetton and the Wu cases happened in 1999. Two other patients also filed suit against the doctor. The [Texas Medical Board] investigated Dr. Neely. The Board found Neely had a history of hand tremors and that between 1999 and 2002, Dr. Neely was writing prescriptions, not only for his patients but for himself as well. Narcotics, muscle relaxers and pain killers. Something former patient Paul Jetton finds shocking.
Paul Jetton: Narcotics, opiates, I mean it's just things that, I mean things that they don't even let people operate machinery or drive cars when they're, when they're taking them and this guy's doing brain surgery on people. I mean it's just, even now I'm just, it's just incredulous, you just can't even believe that it even happened.
Wilson: The [Texas Medical Board] did discipline Dr. Neely. This past December, they suspended his license but gave it right back by staying the suspension. Now he's on probation for three years. The only requirements are that he see a psychiatrist and not write prescriptions for himself or his family. A decision the Board defends.
Jill Wiggins [caption identifies her as a Board representative]: We have compliance officers and the compliance officers will definitely follow to make sure that he's doing the things that his order requires him to do.
Wilson: But how would they know if he is using? He can get somebody else to prescribe him. I mean he could say, “I've followed the order.”
Wilson: I didn't prescribe myself.
Wiggins: Right, right.
Wilson: How do we, how do we know that he's, that we're not putting somebody right back out there to do the same thing he was doing before?
Wiggins: That's a very good question and why this order doesn't include drug testing, I, I honestly don't know the answer to that.
Paul Jetton: I think it's just deplorable, I mean if, if it was another profession, uh, the guy would be in jail.
Wilson: We contacted Dr. Neely for his side to the story. He declined to participate, but his attorney told us that two highly qualified neurosurgeons who reviewed the case agree with the medical decisions made by Dr. Neely. In addition, the [Texas Medical Board] investigated the Jetton case and found no wrong doing. We also contacted St. David's Medical Center, its chief medical officer believes they have a strong peer review process. That's where individual doctors review each other's work and decide who should have privileges.
Steve Berkowitz, M.D.: In this particular case the investigation is incomplete and when we actually find the, get the findings we will then be able to make a determination uh, as to whether the privileges should be continued or not. We strongly value quality of course, we value the due process and most importantly we value patient safety.
Wilson: Nanci Wilson, KEYE News investigates.
[The camera then returns to the anchors, Cantu and Maggio.]
Maggio: The Jettons settled their suit against Dr. Neely. The suit filed on behalf of Wu's son was dismissed because it was not filed by an attorney. The other suits are pending.
Cantu: The Texas Board of Medical Examiners does post final actions taken against doctors on its web site, but all other information about complaints is kept secret. Chief Justice JEFFERSON filed a dissenting opinion, in which Justice GREEN and Justice LEHRMANN joined.
Justice HECHT did not participate in the decision.
Chief Justice JEFFERSON, joined by Justice GREEN and Justice LEHRMANN, dissenting.
The Court holds that the broadcast presented a false impression, an untenable “gist,” that the doctor was disciplined for operating on patients while taking dangerous drugs. But that gist is reasonably derived from the medical board's findings, the doctor's testimony, and witness observations. If the news report is damning, it is because it conveys substantial truth. The doctor performed brain surgeries during a time he was ingesting seven narcotics, eight other medications, and alcohol. He suffered hand tremors during the period he operated on patients' brains. The medical board investigator concluded that the doctor was subject to discipline based on his “[i]nability to practice medicine with reasonable skill and safety because of illness or substance abuse.” The board not only suspended his medical license, but also ordered a psychiatric evaluation focused on addictive disorders. It required the doctor to undergo a physical examination to confirm whether he was, or was not, physically capable of operating safely.
The doctor denies he was an addict or that his drug use impaired his surgical skills. That is enough, the Court says, to raise a genuine issue on the broadcast's substantial truth. But that evidence is immaterial to the gist the Court has identified: that the Board disciplined the doctor for taking dangerous drugs during a time he performed sensitive surgeries. Because “the underlying facts as to the gist of [that] charge are undisputed, ... we can disregard any variance with respect to items of secondary importance and determine substantial truth as a matter of law.” McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex.1990).
We must decide whether the broadcast was more damaging to the doctor's reputation, in the mind of an average viewer, than a truthful statement would have been. Id. Here, the literal truth is as caustic as the gist, and the gist reasonably depicts literal truth. Whether it rejected the doctor's gist contention, or found that the broadcast was substantially true, the trial court properly granted summary judgment. The court of appeals properly affirmed that judgment. I would also affirm. The Court's conclusion to the contrary sanctions constitutionally protected speech. For these and other reasons, I respectfully dissent.
I. The broadcast was substantially true.
“The common law of libel .... overlooks minor inaccuracies and concentrates upon substantial truth.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (internal citations omitted). Small discrepancies “do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ ” Id. at 517, 111 S.Ct. 2419;see also Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex.2000) (holding that substantial truth doctrine “precludes liability for a publication that correctly conveys a story's ‘gist’ or ‘sting’ although erring in the details”). “Put another way, the statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ ” Masson, 501 U.S. at 517, 111 S.Ct. 2419 (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)).
We must view the communication as a whole in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive it. Turner, 38 S.W.3d at 114. We determine falsity based on “the meaning a reasonable person would attribute to a publication, and not to a technical analysis of each statement.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex.2004) (emphasis added). Rather than consider the broadcast as a whole, the Court parses it into several different gists, and then addresses only two of them, ironically presenting a certain juxtaposition that the Court itself decries.
The Court states that the broadcast incorrectly characterized Neely's sanction as based on the Board's conclusion that Neely operated on patients while using dangerous drugs. 418 S.W.3d at 60. Because the Board's action was based only on self-prescribing, the Court holds that this gist was not substantially true.
Neely also admits taking Paxil, Flovent, and Singulair.
Q. And—and these are actually drugs that you were, I assume, taking. Correct?
A. Yes, sir.
Q. I mean, you weren't prescribing them to yourself to throw away, correct?
Unless otherwise indicated, all of this information comes from the Board's investigation, the Board's order, or Neely's testimony. The Board's order is attached as an Appendix to this opinion.
Seven of these drugs are narcotics. Paregoric, a narcotic also known as camphorated tincture of opium, contains morphine and is a controlled substance. The average adult dose is 5–10 milliliters one to four times per day; Neely concedes he was taking up to 70 milliliters daily. During 1999–2000 (the time of the Jetton and Wu surgeries), he took it regularly, at bedtime and again upon waking. He believes the effects wore off after two or three hours, and he believes he could perform surgery within three or four hours of taking morphine.
See, e.g., Henley v. State, 387 S.W.2d 877, 878 (Tex.Crim.App.1965) (holding that paregoric “is, in fact, a narcotic drug known under the official drug name of ‘camphorated tinture [sic] of opium’ and that it contains morphine, which comes from opium”).
Neely tore his rotator cuff in 1999, and he admits during that time to taking “quite a bit” of Vicodin, also a narcotic and a controlled substance. He prescribed himself Darvocet, a pain medication, narcotic, and controlled substance; Darvon, Propoxyphene, and Norco, also narcotic pain relievers; Lomotil, another narcotic; Phenergan, an anti-nausea drug that can cause considerable drowsiness; Ventolin, a bronchodilator; Medrol and Azmacort, steroid treatments he used for asthma; Prilosec for acid indigestion; and Flonase. He was also taking Paxil, which his doctor had prescribed for acute depression.
Neely's self-refills were not isolated occurrences. Between August and October 1999—the time he was treating Paul Jetton—Neely self-refilled his Paregoric prescription twelve times.
During the same time, Neely drank alcohol every night that he was not on call. He admits to two drinks per night during 1999–2001, although he would sometimes have four or five at a time and would occasionally “overindulge.” Neely admits that almost all of the drugs he was using, including alcohol, can cause withdrawal symptoms, although he denies any such symptoms, except with regard to Medrol. Neely also acknowledges that the drugs he was using can cause dizziness, visual disturbances, mental cloudiness, euphoria, sedation, and nervousness. Neely admits he was hypomanic, which he defines as “hyperactive,” while on steroids, as he was in 1999. When the broadcast aired, Neely had been involved in seven malpractice cases, at least two of which alleged that he was addicted to prescription drugs and that he abused alcohol.
The Court emphasizes that the Board found that most of Neely's drugs were “legitimately and appropriately prescribed.” 418 S.W.3d at 66. In fact, the Board found that Neely's treating physician appropriately prescribed the medications initially, but it did not conclude that Neely's extensive (and unmonitored) refills were part of a legitimate treatment plan:
Respondent's treating physician legitimately and appropriately prescribed a number of medications to treat these conditions. However, between 1999 and 2002, Respondent began to refill the medications himself in lieu of scheduled visits.
Agreed Order, Finding of Fact 6 (emphasis added). The Board's investigator concluded that Neely should be disciplined for “[i]nability to practice medicine with reasonable skill and safety because of illness or substance abuse.” The Board ordered Neely not to prescribe or “ administer ... controlled substances or dangerous drugs with addictive potential or potential for abuse” to himself. (Emphasis added.) The Board required Neely to undergo an examination by a psychiatrist who was board-certified in forensic or addiction psychiatry. That directive cannot seriously be thought to relate to mental health issues unconnected to drug use. SeeTex. Occ.Code § 164.056(d) (“The board may not require a physician ... to submit to an examination by a physician having a specialty specified by the board unless medically indicated.”). It can only relate to a determination that the doctor was actually taking these drugs and could be addicted to them. It is not hard to understand the Board's concerns: patient safety may be negatively impacted by a doctor performing surgeries while under the influence of, or experiencing withdrawal from, narcotics. The Board's requirement that Neely undergo a physical examination could only relate to the Board's fear that Neely had a condition that may adversely affect his ability to safely practice medicine.
The Court concludes that the Board's reference to Neely's “inability to practice medicine with reasonable skill and safety to patients, due to mental or physical condition” related only to Neely's hand tremors, and not his drug use. 418 S.W.3d at 74 (“The Board Order ultimately did not discipline Neely under section 164.051(a)(4) for substance abuse but only for a ‘mental or physical condition,’ which was his hand tremor.”). But there is nothing in the Board's order reflecting such a determination. To the contrary, the Order states that “the Board is requesting independent physical and psychiatric evaluations to determine [Neely's] capacity to practice medicine in general, and specifically, to perform surgery.” (Emphasis added.) Although the physical examination would address the Board's concerns about the hand tremors, the psychiatric evaluation, by a board-certified addiction specialist, could only have been intended to address the Board's concerns about Neely's possible substance abuse. We are supposed to view the communication as a whole in light of the surrounding circumstancesbased upon how a person of ordinary intelligence would perceive it. Turner, 38 S.W.3d at 114. No reasonable person would interpret the Board's order the way the Court has.
After Neely and the Board signed the Agreed Order, the Board posted the following on its website:
ON 12–12–03 THE BOARD AND DR. NEELY ENTERED INTO AN AGREED ORDER SUSPENDING THE PHYSICIAN'S LICENSE; STAYING THE SUSPENSION, AND PLACING THE PHYSICIAN ON PROBATION FOR THREE YEARS. THIS ACTION WAS BASED ON ALLEGATIONS THAT DR. NEELY HAD SELF–PRESCRIBED MEDICATIONS WITH THE POTENTIAL TO INTERFERE WITH HIS ABILITY TO PERFORM SURGERY. THE TERMS OF THE ORDER FORBID DR. NEELY FROM SELF–PRESCRIBING MEDICATIONS, AND REQUIRE CONTINUING PHYSICAL AND PSYCHIATRIC EVALUATIONS TO VERIFY HIS FITNESS TO PERFORM SURGERY.
Shortly thereafter, and a month before the KEYE–TV broadcast, the Austin American Statesman reported on the Board's actions, noting that Neely was one of six physicians disciplined for “violations involving either drug or alcohol abuse.” See Mary Ann Roser, 6 physicians disciplined for substance abuse,Austin American Statesman, Dec. 20, 2003.
The Board suspension also led Blue Cross Blue Shield to deny Neely's request to participate in their PPO, POF, and HMO networks.
The court of appeals accurately assessed the substantial truth of the “taking dangerous drugs” gist:
Neely's use of self-prescribed medications was plainly a focus of the Board's order. The order prohibited Neely from prescribing, dispensing, or administering “controlled substances or dangerous drugs with addictive potential or potential for abuse” to himself. Furthermore, the order was consistent with a concern of the Board that Neely might have become addicted to medications he was self-administering. The order required him to be evaluated by a Board-appointed psychiatrist who was board-certified in forensic or addictive psychology. These evaluations had not yet been performed, or the underlying issues resolved, at the time of the broadcast. In short, even if it was not literally true that Neely had been “disciplined for ... taking dangerous drugs” in terms of the precise legal bases of the Board's order, that assertion would at least be substantially true because it would be no more damaging to Neely's reputation in the eyes of the ordinary viewer than a literally true recitation of the Board's order would have been.
331 S.W.3d at 924.
The Court reaches the opposite conclusion, isolating three portions of the broadcast: anchor Fred Cantu's introductory statement that Neely was disciplined for taking dangerous drugs and controlled substances, Paul Jetton's statement that one cannot take the medications Neely was taking and drive a vehicle, and Wilson's questioning of the Texas Medical Board representative regarding whether the order would prevent Neely from using dangerous drugs and controlled substances and thereby “do the same thing he was doing before.” 418 S.W.3d at 78.
Fred Cantu: If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?
Q. We'll call this paragraph one. You can read it to yourself.
Q. Is there anything in there that—that's false about you in there?
A. That's—that's fairly true.
The Court then turns to Paul Jetton's statement and concludes that “Paul's statement that one cannot take the medications Neely was ‘taking’ and drive a vehicle” contributed to the false gist. 418 S.W.3d at 82. But this conflicts with the Court's later holding that some of Sheila Jetton's statements were protected by the judicial proceedings privilege. Specifically, the Court identifies a second gist involving Sheila Jetton's statements that Neely performed unnecessary surgery. The Court decides that those statements were protected because “an ordinary viewer could conclude that Sheila's allegation regarding unnecessary surgery was made in the Jetton lawsuit.” 418 S.W.3d at 69. I do not understand why this holding would not also apply to Paul Jetton's statements about Neely's drug use, which formed the basis of the same lawsuit. His petition, filed nine months before the broadcast, alleged:
At all time [sic] material hereto, Byron Neely, M.D. was impaired from making good medical decisions and from performing neurosurgery because he was dependent on steroids and opiates and that he abused alcohol. Byron Neely, M.D. knew that he was not competent to perform neurosurgery because he had tremors in his hands as a result of the drugs that he was taking. By providing medical treatment to Paul Jetton and surgery on Paul Jetton in an impaired state, Byron Neely, M.D. acted negligently and such negligence was a proximate cause of the complained of damages. Such impairment adversely affected Byron Neely, M.D.'s communication skills and attentiveness to Paul Jetton's infected shunt.
But even if Paul's statement were not privileged, Neely acknowledges its factual truth: you should not drive a car after you've taken Vicodin, Darvocet, Paregoric, Phenergan, or Norco. Neely agrees that these drugs impact physical and mental abilities, and that a surgeon should not perform surgery after taking these drugs. He also confirms that he was taking all of them, although he denies that he operated while impaired.
Finally, Neely admits that Jetton's statement was his opinion, and nothing more:
Q. Now, this is Mr. Jetton's statement, right?
A. That is correct.
Q. And these are his views or opinions about some of the drugs that you were self-prescribing, right?
A. That's his opinion.
See, e.g., Greenbelt Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (holding that article reporting that people had characterized a real estate developer's position as “blackmail” was protected expression; “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's]negotiating position extremely unreasonable”); see alsoRobert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 4:2.4[A] (4th ed.2012)(noting that the Supreme Court has held that speech is not defamatory even if “literally containing assertions of fact [but] is intended to express only points of view”).
The Court concludes that Wilson's questioning of the Board representative also contributed to the false perception that Neely was disciplined for operating on patients while using dangerous drugs. The disputed excerpt provides:
Wilson: The [Board] did discipline Dr. Neely. This past December, they suspended his license but gave it right back by staying the suspension. Now he's on probation for three years. The only requirements are that he see a psychiatrist and not write prescriptions for himself or his family. A decision the Board defends.
Board representative: We have compliance officers and the compliance officers will definitely follow to make sure that he's doing the things that his order requires him to do.
Wilson: But how would they know if he's using? He can get somebody else to prescribe him. I mean, he could say, “I've followed the order.”
Board representative: Right.
Wilson I didn't prescribe myself.
Board representative: Right, Right.
Wilson: How do we, how do we know that he's, that we're not putting somebody right back out there to do the same thing he was doing before?
Board representative: That's a very good question, and why this order doesn't include drug testing, I, I honestly don't know the answer to that.
Wilson is not suggesting that the Board disciplined Neely for taking dangerous drugs, but rather that the Board did not do enough—that in the face of knowledge that a surgeon had hand tremors and had repeatedly self-prescribed numerous narcotics and controlled substances, the Board let Neely operate without requiring him to undergo drug testing. When asked whether Wilson's final question was true, Neely's response was not that her inquiries created the false impression that the Board had sanctioned him for using drugs, but that the Board would be able to obtain his medical and drug records to determine whether his confessed usage had ceased.
Q. And then Nanci Wilson's asking about: “How would they know if he was using? He can get somebody else to prescribe for him. He could say I followed the order, and I didn't prescribe myself. How do you know that we are not putting somebody right back out there to do the same thing that he was doing before?” Do you see that?
A. I see that, yes.
Q. Is there anything false in there about you, in there?
A. You know, how would he know? They have the—the—they have the medical records and the drug records from, henceforth.
Q. And so you think that they would know from the drug records?
Finally, the Court concludes that it need not address the third gist it identifies: that Neely was operating on patients while experiencing hand tremors. 418 S.W.3d at 69. But we must evaluate the substantial truth of the broadcast as a whole, and the hand tremors are an inseparable part. That portion of the broadcast is also undeniably true.
See City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex.2005) (“[P]ublications alleged to be defamatory must be viewed as a whole—including accompanying statements, headlines, pictures, and the general tenor and reputation of the source itself. A court reviewing legal sufficiency cannot disregard parts of a publication, considering only false statements to support a plaintiff's verdict or only true ones to support a defense verdict.”).
Neely has tremors, although he denies that they impact his surgical skills. He has variously ascribed the tremors to (1) tapering off of Medrol (which occurred when he treated Jetton and Wu, and he admitted some of those tremors were “major”); (2) the Ventolin he was taking; (3) nervousness while meeting with a Board investigator; and (4) being “badgered” by the attorney deposing him. The Board's investigator witnessed the tremors, as did Sheila Jetton when Neely was injecting anesthetic into her husband's head. The Board's order concluded that Neely had a history of tremors, and Neely's personal physician noted it in his medical records. The Board was concerned enough about the tremors that it ordered Neely to undergo a complete examination by a physician “to determine [Neely's] capacity to practice medicine in general, and specifically, to perform surgery.”
The Jettons fired Neely the next day.
The tremors, whether related to Neely's drug use or not, raise separate questions about Neely's fitness to perform surgeries. They formed part of the basis for the Board complaint and subsequent order, as well as the Jettons' lawsuit. We cannot consider the broadcast as a whole without including this portion of it.
The Court concludes that Neely has raised a fact issue on falsity because he denies operating while impaired and because the physician he hired after the Board instituted proceedings against him found that Neely did not have a substance abuse disorder. But Neely's controverting evidence goes to whether he was impaired or an addict, not to whether the Board disciplined him for taking dangerous drugs during a time he was performing brain surgeries.
A case from the United States Court of Appeals for the Seventh Circuit is instructive. See Global Relief Found., Inc. v. New York Times Co., 390 F.3d 973 (7th Cir.2004). Global Relief Foundation, Inc., an Illinois charity, sued several media defendants, alleging that news reports after the September 11, 2001 terror attacks falsely suggested that Global Relief had funded terrorism. Id. at 974–75. Global Relief complained that donations to the organization evaporated following these reports. Id. at 980–81. The media defendants moved for summary judgment, arguing that their reports were substantially true recitations of the government's suspicions about and actions against Global Relief. Id.
Global Relief opposed the motion and provided two affidavits, one from its executive director and another from its lead lawyer. Id. at 982–83. The executive director's affidavit denied that Global Relief engaged in violence or supported violence, terrorism, or military operations; he also denied that Global Relief ever provided weapons or military items to anyone or that it had provided humanitarian aid to the families of suicide bombers. Id. at 983. Global Relief argued that this affidavit raised a fact issue, making summary judgment improper. Id.
Even in light of this evidence, the Seventh Circuit held that summary judgment was appropriate because the news reports were substantially true. Id. at 990. Althoughthe executive director's affidavit “demonstrates a genuine issue on whether [Global Relief] has ever funded terrorist activity [, t]hat genuine issue ... may not be material or relevant if the true gist or sting of the publications was not that [Global Relief] funded terrorism but that the government was investigating [Global Relief] for ties to terrorism and was considering blocking the group's assets.” Id. at 983. The court ultimately concluded that Global Relief's evidence did not raise a fact issue on the substantial truth of the story's gist, which was the latter, and it affirmed summary judgment in the defendants' favor. Id. at 990. The court rejected Global Relief's “argument that these media defendants must be able to prove the truth of the government's charges before reporting on the investigation itself.” Id. at 987. The court concluded that “[t]he fact of the investigation was true whether or not it was publicly known. That is all the defendants need to show for the defense of substantial truth. This they have done.” Id. at 989.
The same applies to Neely's controverting evidence. Taking all of it as true, it demonstrates only a genuine issue on whether he was in fact impaired. That is immaterial to the story's gist: that the Board disciplined Neely for operating on patients while taking dangerous drugs. That gist was substantially true as a matter of law.
We come, then, to the literal truth. Even without reference to “gist,” we know that the Board disciplined Neely for prescribing dangerous drugs to himself, drugs he admits taking. We know that the Board ordered that Neely be supervised as a result. We know that Neely had hand tremors during a period of time in which he performed sensitive surgeries. The Board ordered psychiatric and physical evaluations that could only be tied to a concern for the safety of patients under Neely's care. We know that several of those patients experienced bad outcomes after Neely operated on them. We know that he had been involved in seven malpractice cases, at least two of which alleged that he was dependent on alcohol and drugs. These facts are not gist, only truth. Because the broadcast did not create a different effect on the average viewer's mind than the truth would have, I would hold that it is substantially true. Masson, 501 U.S. at 516, 111 S.Ct. 2419;Turner, 38 S.W.3d at 114–15. I would go further. The “gist” that bothers the Court is actually an inference reasonably drawn from uncontested facts. The broadcast neither presents an inaccurate gist nor distorts the substantial truth.
II. Because the broadcast was substantially true, we need not revisit McIlvain.
The Court suggests that McIlvain stands only for the proposition that a broadcast's report of allegations are protected if those allegations are later proved to be true. 418 S.W.3d at 70. The Court rejects several Texas appellate courts' and the United States Court of Appeals for the Fifth Circuit's interpretation of McIlvain—that when a report is merely that allegations were made and were under investigation, proof that allegations were in fact made and under investigation establishes the report's substantial truth. I disagree with the Court's restrictive view of McIlvain. But even if that case's precise limits are unclear, the speech here would be protected under the general rules protecting reports of investigations, such as Texas' fair report privilege. SeeTex. Civ. Prac. & Rem.Code § 73.002(b)(1). As a leading treatise notes,
See, e.g., Green v. CBS Inc., 286 F.3d 281, 284 (5th Cir.2002); Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 443 (Tex.App.–Austin 2007, pet. denied); Grotti v. Belo Corp., 188 S.W.3d 768, 771 (Tex.App.–Fort Worth 2006, pet. denied); Associated Press v. Boyd, No. 05–04–01172–CV, 2005 WL 1140369, at *3 (Tex.App.–Dallas May 16, 2005, no pet.); UTV of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 611–12 (Tex.App.–San Antonio 2002, no pet.); KTRK Television v. Felder, 950 S.W.2d 100, 105 (Tex.App.–Houston [14th Dist.] 1997, no writ).
See alsoRestatement (Second) of Torts § 611 (1977) (noting that “[t]he publication of defamatory matter concerning another in a report of an official action or proceeding ... is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported”).
News reports that an investigation is underway by the police, by prosecutors, by other law enforcement agencies, or by other officials are common. Publication of the details of such inquiries is similarly common. Arguably such a report is, in substance, an implied allegation of the wrongdoing being leveled against the subject of the investigation. Readers or hearers may certainly interpret it as such; if there were no such allegation, presumably there would be no such investigation. The issue then arises as to whether the republisher of the charges is responsible for the truth thereof, that is, if the person is not guilty of the charges being investigated, does he or she have a defamation action against the republisher? ...
The law treats these accounts as reports of events, not as republications of allegations of wrongdoing, so that as a general matter, if there is in fact an investigation, the report of its existence is “true.” Investigations are often important governmental occurrences. Permitting lawsuits for accurate reports of such events would threaten to black out significant news. “Doubtlessly, it is painful to be cast before the public as the target of an investigation where later events point to baseless or vexatious charges. The greater wrong, however, would be to shroud in secrecy, for want of publication, the government's scrutiny of its citizens.”
Robert D. Sack, Sack On Defamation: Libel, Slander, and Related Problems § 7.3.5[C] (4th ed.2012) (emphasis added) (quoting Sibley v. Holyoke Transcript–Telegram Publ'g Co., 391 Mass. 468, 461 N.E.2d 823, 826 (1984)). The report here presented a “fair abridgement” of the Medical Board proceedings and the Jetton and Wu lawsuits, and I would conclude that it was privileged. SeeRestatement (Second) of Torts § 611 (1977). Apart from the constitutional considerations raised by restricting such speech, these are matters of public concern. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (noting our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”). Imposing liability for reporting on such issues will shield the truth, not expose it. As the Felder court noted:
[T]he media would be subject to potential liability everytime [sic] it reported an investigation of alleged misconduct or wrongdoing by a private person, public official, or public figure. Such allegations would never be reported by the media for fear an investigation or other proceeding might later prove the allegations untrue, thereby subjecting the media to suit for defamation. Furthermore, when would an allegation be proven true or untrue for purposes of defamation? After an investigation? After a court trial? After an appeal? Undoubtedly, the volume of litigation and concomitant chilling effect on the media under such circumstances would be incalculable. First Amendment considerations aside, common sense does not dictate any conclusion other than the one we reach today.
KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex.App.–Houston [14th Dist.] 1997, no writ).
The broadcast is damning because it raises questions about Neely's fitness as a surgeon. But it is also substantially true. The Court's holding abridges the freedom to report on a matter of public concern. In that respect, it collides violently with the First Amendment. See Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir.1993) (“The rule making substantial truth a complete defense and the constitutional limitations on defamation suits coincide.”). I would answer anchor Fred Cantu's initial question in the broadcast “Yes.” See supra, note 5. I respectfully dissent.
LICENSE NO. D9588
IN THE MATTER OF THE COMPLAINT AGAINST BYRON DAVIS NEELY, M.D.
BEFORE THE TEXAS STATE BOARD OF MEDICAL EXAMINERS
On the 12th day of December, 2003, came on to be heard before the Texas State Board of Medical Examiners (“the Board” or “the Texas Board”), duly in session, the matter of the license of BYRON DAVIS NEELY, M.D. (“Respondent”).
On August 22, 2003, Respondent appeared in person and with counsels, Dan Ballard and Stacey J. Simmons, at an Informal Show Compliance Proceeding and Settlement Conference in response to a letter of invitation from the staff of the Board. Walter Mosher represented Board Staff. The Board's Representatives were David E. Garza, D.O., a member of the Board, and Kevin R. Smith, M.D., a member of the District Review Committee.
Upon the recommendation of the Board's Representatives and with the consent of Respondent, the Board makes the following Findings of Fact and Conclusions of Law and enters this Agreed Order.
FINDINGS OF FACT
The Board finds that
1. Respondent received all notice requited by law. All jurisdictional requirements have been satisfied. Respondent waives any defect in notice and any further right to notice or hearing. under Tex. Occ.Code Ann. Title 3, Subtitle B (Vernon's 2002) (the “Act”) or the Rules of the Board.
2. Respondent currently holds Texas Medical License No. D9588. Respondent was originally issued this license to practice medicine in Texas on August 21, 1972. Respondent is also licensed to practice in Colorado.
3. Respondent is primarily engaged in the practice of Neurological Surgery. Respondent is Board Certified by the American Board of Neurological Surgery.
4. Respondent is 57 years of age.
5. Respondent has not previously been the subject of disciplinary action by the Board.
6. Respondent suffered various injuries and ailments, which required a variety of medications. Respondent's treating physician legitimately and appropriately prescribed a number of medications to heat these conditions. However, between 1999 and 2002, Respondent began to refill the medications himself in lieu of scheduled visits. The list of medications Respondent has self-prescribed include Hydrocodone, Soma, Darvocet, Paregoric, Propoxyphene, Carisoprodol, Medrol, Phenergan, Azmacort, Cardin, Prilosec, Lomotil, Ventolin, Norco, and Flonase.
7. Upon review of statements of Respondent and the September 27, 2000 medical records of Respondent obtained from his treating physician, the Panel concluded that Respondent had a prior history of tremors.
8. The Panel took notice of the fact that the Board's investigator claims to. have witnessed a tremor-dating the 2002 interview. Respondent asserted the tremor was the result of. nervousness about the interview.
9. Respondent presented evidence he has undergone a full physical examination by R. Russell Thomas, D.O., Board certified Family Practitioner. Dr. Thomas found Respondent to be in relatively good health, with no need of chronic medications. Dr. Thomas did not detect a medically significant tremor, however, felt unqualified to determine Respondent's ability to perform surgery, and recommended a disability assessment or a Neuro-psyche evaluation. Additionally, Respondent presented evidence of a psychiatric evaluation by Edgar Nance, M.D., Board certified Psychiatrist and Addictionologist to determine the possibility of substance abuse or addiction. Dr. Nance found no underlying psychiatric condition that would inhibit Respondent's ability to practice medicine. The Board is requesting independent physical and psychiatric evaluations to determine Respondent's capacity to practice medicine in general, and specifically, to perform surgery.
10 Respondent has cooperated in the investigation of the allegations related to this Agreed Order. Respondent's cooperation, through consent to this Agreed Order, pursuant to the provisions of Section 164.002 of the Act, will save money and resources for the State of Texas. To avoid Rather investigation, hearings, and the expense and inconvenience of litigation, Respondent agrees to the entry of this Agreed Order and to comply with its terms and conditions.
CONCLUSIONS OF LAW
Based on the above Findings of Fact, the Board concludes that:
1. The Board has jurisdiction over the subject matter and Respondent pursuant to the Act.
2. Respondent is subject to action by the Board under Sections 164.051(a)(4) and 164.056 of the Act due to Respondent's inability to practice niedioine with reasonable skill and safety to patients, due to mental or physical condition.
3. Respondent is subject to disciplinary action pursuant to Section 164.051(a)(3) of the Act by committing a direct or indirect violation of a rule adopted under this Act, either as a principal, accessory, or accomplice, to wit, Board Rule 190.1(c)(1)(M)—inappropriate prescription of dangerous drugs or controlled substances to oneself family members, or others in which there is a close personal relationship.
4. Section 164.001 of the Act authorizes the Board to impose a range of disciplinary actions against a person fir violation of the Act or a Board rule. Such sanctions include: revocation, suspension, probation, public reprimand, limitation or restriction on practice, counseling or treatment, required educational or counseling programs, monitored practice, public service, and an administrative penalty.
5. Section 164.002(a) of the Act authorizes the board to resolve and make a disposition of this matter through an agreed Order.
6. Section 164.002(d) of the Act provides that this Agreed Order is a settlement agreement under the Texas Rules of Evidence for purposes of civil litigation.
Based on the above Findings of Fact and conclusions of Law, the Board ORDERS that:
1. Based on the above Findings of Fact and Conclusions of Law, the Board ORDERS that Respondent's Texas license is hereby SUSPENDED; however, the suspension is STAYED and Respondent is placed on PROBATION under the following terms and conditions for 3 years from the date of the signing of this order by the presiding officer of the Board:
2. Except as otherwise provided for by the terms of this Order, Respondent shall not treat or otherwise serve as physician for Respondent's immediate family, and Respondent shall not prescribe, dispense, administer or authorize controlled substances or dangerous drugs with addictive potential or potential for abuse to Respondent or Respondent's immediate family. Respondent may self-administer or administer to Respondent's immediate family only such drugs as prescribed by another physician for a legitimate medical purpose and in compliance with the orders and directions of such physician.
3. A psychiatrist board identified in forensic or addiction psychiatry shall be appointed the Executive Direction to serve as the evaluating psychiatrist, Respondent shall submit to and obtain a complete forensic evaluation from the approved evaluating psychiatry.
The psychiatric evaluation will include at a minimum: social history and background information, history of present illness, mental status exam, review of records and other pertinent collateral information, DSM IV multiaxial diagnosis, and treatment recommendations. The Board and Respondent shall furnish a copy of this Order to the Approved evaluating psychiatrist as authorization to make a full report to the Board regarding Respondent's evaluation and any subsequent reports regarding Respondent's compliance with this Order. Respondent shall follow all recommendations made by the evaluating psychiatrist regarding continued care and treatment.
If the evaluating psychiatrist recommends confined psychiatric care and treatment, within thirty (30) days of that recommendation, Respondent shall submit in writing to the Director of Compliance of the Board, for approval by the Executive Director, the names of three (3) psychiatrists board certified in psychiatry to serve as the treating psychiatrist. Respondent may submit the name of his current treating psychiatrist. Respondent shall begin the recommended care and treatment with the approved treating psychiatrist within thirty (30) days of notification of approval by the Director of Compliance. The Board and Respondent shall furnish a copy of this Order to the approved treating psychiatrist as authorization for the treating psychiatrist to make reports to the evaluating psychiatrist regarding Respondent's compliance with the terms of this Order. Respondent shall follow all recommendations made by the treating psychiatrist regarding continued care and treatment.
During any continued care and treatment, Respondent shall be monitored for purposes of compliant with this Order. The evaluating forensic psychiatrist will monitor Respondent's treatment and rehabilitation, and provide progress reports to the Board every six (6) months. The reports are due on March 15 and September 15. The monitoring reports shall include current mental status examinations; pertinent history and social background information: progress with treatment and rehabilitation; and updated recommendations for Respondent's care. Respondent shall authorize the evaluating and treating psychiatrists to obtain any collateral information necessary for preparation of the monitoring reports from any third party, including the treating psychiatrist The collateral Jar:emotion obtained shall be strictly limited to the minimum information necessary to ensure adequate assessment of Respondent's rehabilitation and compliance with the terms of this Order.
Board staff may furnish to each approved psychiatrist any Board information that it determines in, its discretion may be helpful or required for the evaluation and treatment of Respondent.
Respondent's failure to cooperate with. either approved psychiatrist or failure to follow the recommendations of either approved psychiatrist shall constitute a violation of this Order.
4. Within thirty (30) days of the signing of this Order by the presiding officer of the Board, Respondent shall undergo a complete examination by a physician approved in advance in writing by the Executive Director of the Board, and Respondent shall undergo continuing care and treatment by the approved physician for the treatment of any condition which, without adequate treatment, could adversely affect Respondent's ability to safely practice medicine.
Respondent shall authorize and request in writing that the approved physician provide written periodic reports no less than once each quarter during Respondents treatment which reflect the status of Respondents physical and mental condition, as well as Respondent's efforts at cooperation with treatment. Respondent shall authorize and request in writing that the approved physician provide such other written or oral reports as Board representatives and staff may request regarding Respondent's care and treatment within seven (7) days of the request Respondent shall follow all recommendations of the approved physician to the extent that the recommendations are consistent with the terms of this Order as determined by the Board. Respondent shall not unilaterally withdraw from treatment, and shall request and authorize in writing that the approved physician report to the Board within forty-eight (48) hours any unilateral withdrawal from treatment by Respondent. Respondent shall provide a copy of this Order to the approved physician as a reference for evaluation and treatment, and as authorization Oar the physician to provide to the Board any and all records and reports related to the evaluation and treatment conducted pursuant to this paragraph. Upon request, Respondent shall execute any and all releases for medical records necessary to effectuate the provisions of this paragraph and this Order.
5. The time period of this Order shall be tolled if (a) Respondent subsequently resides or practices outside the State of Texas, (b) Respondent subsequently is in official retired status with the Board, (c) Respondent's license is subsequently cancelled for nonpayment of licensure fees, or (d) this Order is stayed or enjoined by Court Order. If Respondent leaves Texas to live or practice elsewhere, Respondent shall immediately notify the Board in writing of the dates of Respondent's departure from and subsequent return to Texas. When the period of tolling ends, Respondent shall be required to comply with the terms of this Order for the period of time remaining on the Order. Respondent shall pay all fees for reinstatement or renewal of a license covering the period of tolling.
6. Respondent shall comply with all the provisions of the Act and other statutes regulating the Respondent's practice.
7. Respondent shall fully cooperate with the Board and the Board staff, including Board attorneys, investigators, compliance officers, consultants, and other employees or agents of the Board in any way involved in investigation, review, or monitoring associated with Respondents compliance with this Order. Failure to fully cooperate shall constitute a violation of this order and a basis for disciplinary action against Respondent pursuant to the Act.
8. Respondent shall inform the Board in writing of any change of Respondent's mailing or practice address within ten days of the address change. This information shall be submitted to the Permits Department and the Director of Compliance for the Board. Failure to provide such information in a timely manner shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act.
9. Any violation of the terms, conditions, or requirements of this Order by Respondent shall constitute unprofessional conduct likely to deceive or defraud the public, and to injure the public, and shall constitute a basis for disciplinary action by the Board against Respondent pursuant to the Act.
10. Respondent is permitted to supervise physician assistants, advanced nurse practitioners, and surgical assistance.
11. The above-referenced conditions shall continue in full force and effect without opportunity for amendment, except for clear error in drafting, for 12 months following entry of this Order. If, after the passage of the 12–month period, Respondent wishes to seek amendment or termination of these conditions, Respondent may petition the Board in writing. The Board may inquire into the request, and may, in its sole discretion, grant or deny the petition without further appeal or review. Petitions for modifying or terminating may be filed only once a year thereafter.
RESPONDENT WAIVED ANY FURTHER HEARINGS OR APPEALS TO THE BOARD OR ANY COURT IN REGARD TO ALL TERMS AND CONDITIONS OF THIS AGREED ORDER. RESPONDENTS AGREES THAT THIS IS A FINAL ORDER.
THIS ORDER IS A PUBLIC RECORD.
I, BYRON DAVID NEELY, M.D., HAVE READ AND UNDERSTAND THAT THIS SIGNING, I WAIVED CERTAIN RIGHTS. I SIGN IT VOLUNTARILY. I UNDERSTAND THIS AGREED ORDER CONTAINS THE ENTIRE AGREEMENT AND THERE IS NO OTHER AGREEMENT OF ANY KIND, VERBAL, WRITTEN OR OTHERWISE.
DATED: 12/4 , 2003
BYRON DAVIS NEELY, M.D.
STATE OF TEXAS
COUNTY OF TRAVIS
SWORN TO AND ACKNOWLEDGE BEFORE ME, the undersigned Notary Public, on this 4th day of December, 2003.
Signature of Notary Public
Printed or typed name of Notary Public
My Commission expires:
SIGNED and ENTERED by the presiding officer of the Texas State Board of Medical Examiners on this 12 day of December, 2003.
Lee S. Anderson, M.D., President
Texas State Board of Medical Examiners
STATE OF TEXAS
COUNTY OF TRAVIS
I, Sally Durocher, certify that I am an official assistant custodian of records for the Texas Medical Board, and that this is a true and correct Copy of the original, as it appears on file in this office.
Witness my official hand and seal of the Board, this 30th day of January, 2008.
Assistant Custodian of Records JUSTICE LEHRMANN, dissenting to the denial of the motion for rehearing.
“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” Letter from Thomas Jefferson to James Currie (Jan. 28, 1786), in 9 The Papers of Thomas Jefferson: 1 Nov. 1785–22 June 1786, at 239 (Julian P. Boyd ed., 1954). As the Court recognizes, this case concerns bedrock constitutional guarantees that protect the right to free speech and a free press. 418 S.W.3d at 64. The U.S. Supreme Court has said that the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). In turn, media reporting of investigations regarding matters of public concern is vital to a vigilant and active press. However, it is inherent in the nature of investigative reporting that some allegations will be reported that are later discovered to be untrue. Shielding media defendants from defamation liability for accurately reporting such allegations is a critical and well-settled practice, yet the Court's opinion declines to recognize as a definitive statement of Texas law that “media reporting of third-party allegations under investigation is substantially true if the media accurately reports the allegations and the existence of any investigation.” 418 S.W.3d at 64. Because I would grant rehearing in this case to clarify that this statement correctly describes Texas law, I respectfully express my dissent.
In a brief filed by numerous amici in support of Respondents' Motion for Rehearing, amici assert that the Court's opinion, albeit in dicta, mischaracterizes our holding in McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990). The Court's opinion describes our approach in McIlvain as “measur [ing] the truth of [reported] allegations ... against the government investigation that found them to be true.” 418 S.W.3d at 65. This language, coupled with the statement that “one is liable for republishing the defamatory statement of another,” id. at 61, may cause some to understand our holding in McIlvain too narrowly. In McIlvain, we considered a broadcast reporting that certain city employees were under investigation for alleged misconduct. 794 S.W.2d at 15. The broadcast also relayed specific allegations regarding the underlying misconduct. Id. We verified the substantial truth of the broadcast in several ways. First, we considered affidavits from the city's legal department “confirm[ing] the existence of the investigation.” Id. at 16. Second, we relied on documented sworn statements from a city employee describing the alleged misconduct. Id. Finally, on those portions of the broadcast that presented the most direct accusations of misconduct, we measured the accusations against the findings of the investigation to establish their substantial truth. See id.
I would readMcIlvain, as have the Fifth Circuit and several Texas courts of appeals, to support the proposition that when the gist of a media defendant's report is that allegations were made and those allegations are being investigated, proof that the allegations were in fact made and are in fact being investigated is sufficient to establish substantial truth. E.g., Green v. CBS, Inc., 286 F.3d 281, 283–84 (5th Cir. 2002); Grotti v. Belo Corp., 188 S.W.3d 768, 775 (Tex. App.–Fort Worth 2006, pet. denied); KTRK Television v. Felder, 950 S.W.2d 100, 106 (Tex. App.–Houston [14th Dist.] 1997, no writ). The Court disagrees with this interpretation of McIlvain and notes only that “we do not foreclose the possibility that the gist of some broadcasts may merely be allegation reporting, such that one measure for the truth of the broadcast could be whether it accurately relayed the allegations of a third party.” 418 S.W.3d at 65. I would go further and would affirmatively recognize the third-party allegation rule espoused by the Fifth Circuit and the Texas courts of appeals after McIlvain as an accurate statement of Texas law.
The Court's opinion notes that such a rule would not enable KEYE to prevail in light of the Court's determination that the gist of the broadcast at issue went beyond allegation reporting. 418 S.W.3d at 65. For the reasons expressed in the dissenting opinion in this case, I continue to disagree with the Court's characterization of the gist of the broadcast and its determination that a fact issue exists as to the substantial truth of the broadcast. However, that is not the basis of my dissent today. In any event, since the Court could reconsider the characterization of the gist of the broadcast on rehearing, it is possible that the merits of the third-party allegation rule would be reached if the motion for rehearing were granted.
As amici argue, media defendants should not hesitate to report on allegations that are under investigation for fear that those allegations may later be proven false. Because the Court's opinion may lead to uncertainty in this critical area of the law, and as a result may have a chilling effect on the press, I would grant rehearing. Accordingly, I respectfully dissent to the denial of Respondents' Motion for Rehearing.