On October 31, 2013, the Virginia Supreme Court published its opinion in Cashion v. Smith, et al. This opinion provides invaluable guidance on the elements of and defenses to defamation claims.
In Cashion, an anesthesiologist sued a trauma surgeon and a hospital for defamation and defamation per se based on statements made by the surgeon immediately following the death of a patient during surgery. The defendant surgeon made certain statements regarding the quality of the anesthesiologist’s treatment, and particularly, his alleged failure to properly resuscitate the patient. The Supreme Court divided the statements into “non-euthanasia statements” and “euthanasia statements.” The Court was presented with three main issues on appeal. First, whether the “non-euthanasia statements” constituted opinion. Second, whether the “euthanasia statements” were protected by a qualified privilege and whether the defendant abused that privilege. Finally, the Court addressed whether the “euthanasia statements” constituted rhetorical hyperbole.
On the first issue, the Court held that the issue of whether a statement is opinion is a question of law. That determination is made by deciding whether the “statement is relative in nature” and whether the statement “is focused primarily on the speaker’s viewpoint.” In this case, the defendant’s statements that “[t]his was a very poor effort,” “you didn’t really try” and “you gave up on him” constituted opinion. However, statements that “he could have made it with better resuscitation” and “you determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him” were factual allegations because they were attributed directly to the plaintiff’s actions.
For the second issue, the Court upheld the trial court’s ruling that the defendant’s “euthanasia” statements were protected by a qualified privilege. These statements were privileged because they were made between “medical professionals in the operating room during the patient’s treatment” and all persons had a “continuing interest in the level of care that had been provided and the cause of death.” However, the Court held that the trial court improperly decided the abuse of privilege issue as a matter of law because abuse is a jury question. The Court upheld the rule that statements made with personal spite or ill may override a qualified privilege and the Court also provided several other elements, that independent of one another, could be used to override a privilege.
Finally, the Court addressed whether the defendant’s “euthanasia” statements constituted rhetorical hyperbole. Generally, statements characterized as rhetorical hyperbole are those from which “no reasonable inference could be drawn that the individual identified in the statements, as a matter of fact, engaged in the conduct described.” The Court ultimately held that the statements the defendant’s statements were not rhetorical hyperbole because the circumstances in which the statements were made, along with the relationship between those involved, could lead a reasonable person to believe the defendant attributed the death to the plaintiff’s actions.
Although the Supreme Court’s decision in Cashion is not “new” it is helpful because it discusses the nuanced differences between a series of statements and explains why each statement is or is not defamatory. The case also includes an informative discussion about which elements of defamation law are questions of law and which are questions of fact for the jury. Finally, the Cashion case provides a summary of the seminal cases discussing the elements a plaintiff can use to overcome a defendant’s qualified privilege defense. For anyone looking for defamation law in a nutshell, the Cashion case is an excellent resource.