403 Mass. 779 (1989), Elm Medical Laboratory, Inc. v. RKO General, Inc.

Citation:403 Mass. 779, 532 N.E.2d 675
Party Name:ELM MEDICAL LABORATORY, INC., et al. [ 1] v. RKO GENERAL, INC., et al. [ 2]
Case Date:January 11, 1989
Court:Supreme Judicial Court of Massachusetts
 
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Page 779

403 Mass. 779 (1989)

532 N.E.2d 675

ELM MEDICAL LABORATORY, INC., et al. 1

v.

RKO GENERAL, INC., et al. 2

Supreme Judicial Court of Massachusetts.

January 11, 1989

[532 N.E.2d 677] W. Paul Needham, Boston, for plaintiffs.

Laurie S. Gill (David R. Friedman, Boston, with her), for defendants.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

Page 780

NOLAN, Justice.

The plaintiffs, an incorporated medical laboratory (ELM), its medical director, and its general manager, claim that the defendant, RKO General, Inc. (RKO), 3 defamed them in five television broadcasts in July of 1980. The plaintiffs also claim invasion of privacy and tortious interference with business relations as a result of the broadcasts. A judge of the Superior Court allowed a motion for summary judgment in favor of RKO on all three counts. The plaintiffs appealed to the Appeals Court. We transferred the case to this court on our own motion. We affirm the judgment.

Page 781

1. The broadcasts. The five allegedly defamatory broadcasts were prompted by a news release issued jointly by the Boston office of the United States Department of Health and Human Services and the Massachusetts Department of Public Health. The July 2, 1980, news release, entitled "Health Alert," was an effort by Federal and State officials to identify all physicians, clinics and patients who might have used the ELM laboratory during the previous four years, because a joint Federal-State investigation had revealed that ELM had improperly screened or misread a large number of laboratory tests. The health alert indicated that "any woman who has had a pap smear taken by any of these physicians or clinics should contact them promptly to determine if rescreening is necessary."

The health alert further stated that: (1) health officials knew that "some women could be at risk because their PAP slides were improperly screened or actually misread;" (2) "at least several hundred women are not aware that they are at some unnecessary risk of having abnormal, precancerous or cancerous conditions;" (3) "[a]n estimated 150,000 to 200,000 women had slides sent to ELM Medical Laboratory" between June, 1976, and July, 1980; and (4) up to July 2, 1980, there were "22 misread cases of abnormal PAP smears of the 1,219 slides rescreened by the [Federal] Center for Disease Control [ (CDC), in Atlanta, Georgia]."

RKO news reporter Charlene Mitchell prepared and delivered several reports on the ELM Medical Laboratory, as a result of the health alert. Mitchell has stated that [532 N.E.2d 678] her reports were based not only on the health alert press release, but also on interviews with State and Federal officials.

In the July 2, 1980, news program, RKO reported that "thousands of slides were misdiagnosed by a major medical lab in Boston," and that "possibly as many as several hundred women are at risk for an abnormal[,] precancerous or cancerous condition, related to the cervix." The defendant also reported that "retesting of some of the slides shows a 66% error rate," and that "so far the discrepancies have all been in the false negative slide[s], called negative when they were truly positive."

Page 782

The statement that a health alert was issued because "thousands of pap smears were misinterpreted" was repeated in the 6 P.M. broadcast on July 3, 1980, followed by the qualified statement that "thousands of the pap smears may have been misread." Later that night, on the 11 P.M. news, RKO broadcast the statement, "The ELM Laboratory in Boston has been accused of misdiagnosing hundreds and perhaps thousands of pap smears...." In the introduction to a July 5, 1980, news program, the defendant broadcast the following: "It was announced this week that more than 200,000 pap smears may have been misinterpreted at a Boston laboratory." Its final report on the subject, on July 28, 1980, included the comment, "[a]ccording to the state as many as twenty four hundred pap smears diagnosed at the ELM Lab could be faulty."

2. The fair report privilege. Massachusetts recognizes the "fair report privilege," which allows those who fairly and accurately report certain types of official or governmental action to be immune from liability for claims arising out of such reports. See, e.g., Jones v. Taibbi, 400 Mass. 786, 794-795, 512 N.E.2d 260 (1987) (Published reports of judicial, legislative or other...

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