Disciplinary Proceedings: Due Process and Fair Report to Avoid Liability
Take-away: A decision by the United States Court of Appeals for the Third Circuit in mid-February is a reminder that failures in due process and fair reporting of association disciplinary matters may lead to legal liability.
In Graboff v American Association of Orthopaedic Surgeons, et al., the Third Circuit affirmed a jury verdict against the Association for “false light invasion of privacy” as a result of the Association’s report on the grievance proceedings and discipline of one of its members in the Association’s newsletter. The Court held that the facts as found by the jury supported a finding of libel as well, so it upheld the jury’s award of $196,000 in damages.
The facts behind the opinion: One member of the Association, Dr. A, filed a grievance against another member, Dr. B. An expert opinion report written by Dr. B had been used against Dr. A in a medical malpractice suit. Dr. A asserted that Dr. B had not reviewed certain x-rays prior to preparing his expert report and that the report violated the Association’s Standards of Professionalism, requiring its members to provide honest and accurate testimony when serving as expert witnesses. In response, Dr. B put in evidence that his report was preliminary and that he had not expected the report to be used as evidence in the litigation. In addition, he provided evidence that the law firm that retained him had removed the words “Draft Report” without his knowledge or consent, and that the redacted “Draft Report” was used to secure a settlement from Dr. A.
What was at issue in this opinion was the way the Association reported these facts in its newsletter. The Third Circuit found that the Association’s published report “selectively recounted the circumstances of the grievance proceedings to imply that (Dr. B) had testified falsely” in his expert report.
Under the general law of “defamation by implication” and “false light invasion of privacy,” the publisher of a potentially defamatory report who omits salient facts from a publication may be legally liable, if the result is a false statement of fact whose “gist” has a sting worse than a fully accurate report. The Third Circuit’s holding in Graboff suggests that if the published report of the grievance proceedings had included Dr. B’s defense and had not accused him of testifying falsely, then the Association would not have been liable for either defamation or false light invasion of privacy.
Although the Graboff holding does not address the due process of the grievance proceeding itself, the holding does remind grievance committees and reviewing boards that due process requires that all facts that tend to exonerate, excuse, and mitigate the actions of the charged member must be disclosed and evaluated along with the incriminating evidence. Particularly where the findings and recommendation of the grievance committee are reviewed “on the record” by the reviewing board, the grievance committee and the reviewing board must be careful that there is a complete and accurate record and that all facts, pro and con, relevant to the finding and imposition of discipline are supported and fairly explained in all published accounts so as neither to defame nor shed false light.
Since grievance proceedings are often passionately pursued and defended, it is incumbent on both discipline committees and reviewing boards to be fair and dispassionate, to fully develop and report the facts, and to come to a reasoned conclusion based on the facts found to be proved.