665 F.2d 305 (10th Cir. 1981), 80-1316, Gilbert v. Medical Economics Co.

Docket Nº:80-1316.
Citation:665 F.2d 305
Party Name:Beatrice T. GILBERT a/k/a Beatrice Gilbert Spence, Plaintiff-Appellant, v. MEDICAL ECONOMICS COMPANY, a Division of Litton Industries, Inc.; Litton Industries, Inc., a Delaware corporation; and Bart Sheridan, individually; and John Does I-X, Defendants-Appellees.
Case Date:November 30, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 305

665 F.2d 305 (10th Cir. 1981)

Beatrice T. GILBERT a/k/a Beatrice Gilbert Spence, Plaintiff-Appellant,

v.

MEDICAL ECONOMICS COMPANY, a Division of Litton Industries,

Inc.; Litton Industries, Inc., a Delaware

corporation; and Bart Sheridan,

individually; and John Does

I-X, Defendants-Appellees.

No. 80-1316.

United States Court of Appeals, Tenth Circuit

November 30, 1981

Argued and Submitted May 11, 1981.

Page 306

Ronald H. Shear of Tilly & Graves, Denver, Colo., for plaintiff-appellant.

Thomas B. Kelley of Yegge, Hall & Evans, Denver, Colo., for defendants-appellees.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This is an appeal from the trial court's grant of summary judgment for defendants in a diversity case arising from defendants' alleged tortious invasion of plaintiff's privacy. On April 3, 1978, defendants published in the periodical Medical Economics an article entitled "Who Let This Doctor In The O.R.? The Story Of A Fatal Breakdown In Medical Policing." The article, a copy of which is contained in the record before us, outlines two incidents of alleged medical malpractice in which patients of plaintiff, an anesthesiologist, suffered fatal or severely disabling injuries in the operating room as a result of plaintiff's acts of alleged malpractice. The article indicates that in the case of the disabling injuries, plaintiff's insurer settled the ensuing malpractice action for $900,000. It notes further that in the case of the fatal injury, the patient's family was attempting to reach a settlement. Following a description of these incidents, the article suggests that they occurred because of "a collapse of self-policing by physicians and of disciplinary action by hospitals and regulatory agencies." To show the substantiality of this inadequate policing of medical personnel, the article discusses plaintiff's history of psychiatric and related personal problems. The article suggests (1) that there was a causal relationship between plaintiff's personal problems and the acts of alleged malpractice, (2) that plaintiff's lack of capacity

Page 307

to engage responsibly in the practice of medicine was or should have been known to the policing agents of the medical profession, and (3) that more intensive policing of medical personnel is needed. The article identified plaintiff by name and included her photograph.

On the basis of the pleadings and a copy of the article, the district court held a hearing on cross-motions for summary judgment. Defendants moved for summary judgment on the ground that the article contained only truthful factual statements or opinions relating to newsworthy matters and therefore was protected by the first amendment. Plaintiff conceded that no issues of fact were involved. She urged summary judgment on the theory that although the general theme of the article was newsworthy and therefore privileged, the defendants nevertheless had tortiously invaded her privacy by including in the article her name, photograph, and certain private facts about her life that were not privileged.

In granting summary judgment for the defendants, the trial court agreed that the general subject of the article was indeed newsworthy insofar as it dealt with the competency of licensed professionals. The court noted that the public has a legitimate concern with the fitness of professionals to hold the public trust that a professional license bestows. It further noted that the area of legitimate public concern extends far enough to encompass accounts of factors in the life of a licensed professional that may impair that person's ability to perform competently. The court concluded that, where the general contents of an article are newsworthy, editors must be allowed a measure of discretion to determine how an article should be written and what details should be included. To question whether defendants should have omitted certain details from this particular article, the court believed, would amount to "editorial second-guessing" rather than legal analysis. The court therefore held that the entire article was protected by the first amendment.

I.

On appeal, plaintiff's first contention is that defendants tortiously invaded her privacy by publicly disclosing embarrassing private facts about her personal life. Colorado has recognized a common-law right to privacy. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970). Defendants, however, raised the defense of first amendment privilege, and thus, we must turn to federal substantive law in this...

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