Amongst social circles, gossip and criticism is commonly exchanged between individuals. Statements like, "that Bob can be quite conniving" or "Linda can't be trusted" are typical rhetoric that may be construed as defamatory expressions. Most individuals have heard of terms like defamation, defamatory statements, libel and slander, but a majority of individuals in society lack true understanding what constitutes defamation or how to distinguish each term. In order for like statements to be considered "defamatory," there are specific thresholds that must be met.
Defamation of character consists of oral or written communication to someone other than the person defamed that tends to hold that person's reputation up to scorn and ridicule in the eyes of a substantial number of respectable people in the community. In order for a defamation claim to be actionable, the defamatory statement(s) must be communicated to a third person. As a result, if the statements are only communicated to the injured party, then the plaintiff would not have a viable claim. The false statement must harm the reputation of the other person, as opposed to being merely insulting or offensive. Furthermore, the statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.
Under the penumbra of defamation, there are two forms of defamatory statements, libel and slander. Libel generally refers to statements or visual depictions in written or other permanent form (e.g. magazine or newspaper). Slander is a defamatory statement made verbally or by gesture. The same rules generally apply to both libel and slander, which are often grouped together under the term "defamation." The laws regarding defamation apply to Internet as they do to more traditional media. However, federal law protects Internet service providers (ISPs) and other interactive computer services from many lawsuits.
Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may constitute defamation per se:
1. Attacks on a person's professional character or standing;
2. Allegations that an unmarried person is unchaste;
3. Allegations that a person is infected with a sexually transmitted disease;
4. Allegations that the person has committed a crime of moral turpitude;
Essentially, "per se" defamation holds the plaintiff to a lower burden of proof in order to be successful in a civil claim for damages. This is because the four aforementioned types of defamatory statements has a deeply rooted history to create the presumption of causing damage, thus, the court is much more likely to grant a favorable judgment for the plaintiff.
Truth and privilege are two defenses to defamation claims. When a person has said something that is damaging to another's reputation, the person making the statement will not be liable for defamation if it can be shown that the statement is true. A privilege communication differs from a defamatory statement because the person making the statement has a responsibility to do so. Many states have immunity statutes providing immunity to physicians and other health care professionals in connection with peer review proceedings. The person making the statement must do so in good faith, on the proper occasion, in the proper manner and to persons who have a legitimate reason to receive the information. However, if it can be shown that a speaker made a statement out of monetary gain, hatred or ill will, the law will not permit the speaker to hide behind the shield of privilege to avoid defamation liability.
In health care, specific circumstances may result in defamation claims brought by the injured party against the party providing the statement. For example, an occupational therapist that is treating a patient with cognitive defects or possessing dementia-like symptoms may be privileged to report the on-going progression of a medical condition. In some jurisdictions, state statutory provisions make this especially true if the patient is incapable of providing consent due to his or her mental condition. An administrator's statement made to an occupational therapist's supervisor regarding professional misconduct is not grounds for defamation as long as the statements are made in good faith. An administrator has a duty to report alleged professional misconduct of occupational therapists working in their facility. Below are some other scenarios which may arise in a therapy setting, resulting in a dispute over possible defamation.
An occupational therapist brings an action for libel. The action was premised on a letter written by the Director of Therapy at a hospital to the state occupational therapy association registry to which the occupational therapist was registered. In the letter, the Director of Therapy stated that the hospital did not wish to use the occupational therapist's services because of loss of therapy equipment when this occupational therapist was on working.
RESULT: The court is likely to refuse the occupational therapist to recover because the Director of Therapy had a duty to make the communication in the interests of the professional society. Because the content would be considered privileged communication, the court is likely to grant judgment in favor of the hospital and the letter would cease to be considered libel.
Scenario # 2:
An occupational therapist brings a defamation claim against a physician, charging that a physician slandered her in the course of a consultation concerning the commitment of her husband to a mental institution. The therapist request damages for mental pain, shock, fright, humiliation and embarrassment. The therapist alleged that if the physician's statement were made known to the public, her job and reputation would be adversely affected
RESULT: The court would likely hold that the physician's statement did not constitute slander because the physician was not referring to the nurse in a professional capacity. With slander, the person who brings suit generally must prove special damages; however, when any alleged defamatory words refer to a person's professional capacity, the professional need not show that the words caused damage. It is presumed that any slanderous reference to someone's professional capacity is damaging. Professionals who are called incompetent in front of others have a right to sue to defend their reputation. It is sometimes difficult to prove that an individual comment was injurious. If the person making the injurious comment cannot prove that the comment is true, then that person can be held liable for damages. Consequently, the occupational therapist had to demonstrate damages in order to recover.
Under the American federal law system, defamation claims are largely governed by state law, subject to the limitations imposed by the free speech and press provisions of the First Amendment, as interpreted and applied by the Supreme Court and other courts. It is important that an occupational therapist is aware of his or her state provisions regarding this area of the law. If one has been named as a defendant in a defamation lawsuit, it is imperative to contact an attorney who has experience with First Amendment and/or defamation claims.
Richard Cheng, JD,OTR/L is the Director of Therapy Health Services at Visiting Nurse Association (VNA) of Texas. Prior to his employment at VNA, Richard was an associate attorney at Pearson Randall & Schumacher & LaBore, P.A., serving clients in various legal capacities which include consumer protection, medical malpractice, nursing home litigation, business law, with an emphasis on class actions/mass torts. Richard has conducted a bench trial, served second chair in an extensive medical malpractice jury trial (Nolan v. Mayo Clinic), attended hearings, and assisted with depositions in high profile tort litigation cases (i.e. 3M v. Palmer & Bernstein v. Extendicare Homes, Inc.). He has published legal articles on nursing home litigation and forming business entities. Prior to Richard's legal career, he worked as a licensed occupational therapist for numerous years in rehabilitation, acute care, long term care, outpatient and home health care. He continues to be an active clinician with home health evaluations and have served as an adjunct faculty at The College of Saint Catherine and Nova Southeastern University, teaching public policy and politics in healthcare. In addition, he is an