Byron D. Neely, Individually & Byron D. Neely, M.D., P.A. v. Nanci Wilson, CBS Stations Grp. of Tex., L.P.
| Decision Date | 31 January 2014 |
| Docket Number | No. 11–0228.,11–0228. |
| Parties | Byron D. NEELY, Individually and Byron D. Neely, M.D., P.A., Petitioners, v. Nanci WILSON, CBS Stations Group of Texas, L.P., d/b/a KEYE–TV, and Viacom, Inc., Respondents. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Paul C. Watler, Jackson Walker LLP, Dallas, TX, for Amicus Curiae A.H. Belo Corporation.
Laura Lee Prather, Haynes and Boone, LLP, Austin, TX, for Amicus Curiae Reporters Committee for Freedom of the Press.
Cindy Olson Bourland, Law Firm of Cindy Olson Bourland, P.C., Round Rock, TX, J. Bruce Bennett, Cardwell Hart & Bennett LLP, James D. Baskin III, Jane M.N. Webre, Scott Douglass & McConnico LLP, Austin, TX, for Petitioner Byron D. Neely.
Daniel Jude Kelly, Thomas S. Leatherbury, Vinson & Elkins LLP, Dallas, TX, Lisa Bowlin Hobbs, Kuhn Hobbs PLLC, Matthew Ploeger, Law Office of Matthew Ploeger, Austin, TX, for Respondent Nanci Wilson.
This is an appeal of a summary judgment granted to media defendants in a suit stemming from their investigative broadcast involving a physician. This suit, like all defamation suits, implicates the competing constitutional rights to seek redress for reputational torts and the constitutional rights to free speech and press. But we have long held that despite these concerns, we adhere to our well-settled summary judgment standards.1 Thus, we decide here whether the physician raised a genuine issue of material fact to defeat summary judgment and proceed to trial on his defamation claim.
Truth is a defense to all defamation suits. Additionally, the Legislature has provided other specific defenses for media defendants, such as the official/judicial proceedings privilege, the fair comment privilege, and the due care provision. Here, the media defendants raised various defenses in their summary judgment motion but focused primarily on the truth defense: there is no defamation liability if the gist of the broadcast is substantially true. In the court of appeals, the media defendants mainly argued that we created a rule in McIlvain v. Jacobs2 that a media defendant's reporting of third-party allegations is substantially true if it accurately reports the allegations—even if the allegations themselves are false. We created no such rule in McIlvain, and the facts of this case likewise do not require us to create such a rule. While it is possible for the gist of a broadcast to be mere allegation reporting (such that the truth of such a broadcast might be measured by its accuracy), a person of ordinary intelligence could conclude that the gist of the broadcast at issue was that the physician was disciplined for operating on patients while taking dangerousdrugs or controlled substances. We hold the physician raised a genuine issue of material fact as to the truth or falsity of that gist with evidence that he was not disciplined for taking dangerous drugs or controlled substances and had never performed surgery while taking them.3
As to the remaining defenses, the media defendants did not raise the due care provision in their summary judgment motion and have not conclusively proven the application of another defense or privilege. At trial, the media defendants may well prevail on the truth defense or on one or more of these other defenses and privileges, but they have not conclusively done so here. We therefore reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
Dr. Byron Neely is a neurosurgeon who practiced in Austin. In 1999, he installed a shunt to drain fluid from a tumor in Paul Jetton's brain. An enterobacterial infection set in, leaving Paul in a debilitated state even after 12 subsequent brain surgeries. Paul and his wife, Sheila, sued Neely and others, and Neely settled. In 2002, the Jettons filed a complaint with the Texas Medical Board (Board), and the Board investigation found no wrongdoing by Neely.
Neely also performed surgery on Wei Wu in 1999. After removing a brain tumor, Neely reported seeing small deposits of metastatic melanoma on the surface of Wu's brain during surgery.4 Soon after Wu recovered from the operation and learned of the melanoma deposits from his oncologist, he committed suicide. The autopsy report indicated “no residual metastatic melanoma on gross inspection,” which the coroner later clarified to mean that he believed Wu no longer had any melanoma after the operation. Wu's ex-wife sued Neely on behalf of her minor son, but the suit was dismissed on procedural grounds.5
In 2003, after a separate investigation by the Board, Neely entered into an Agreed Order (Order). In the Order, the Board found that Neely had self-prescribed medications between 1999 and 2002 and had a prior history of hand tremors. Further, the Board found that he was subject to disciplinary action due to his “inability to practice medicine with reasonableskill and safety to patients, due to mental or physical condition” and his self-prescription of medications. The Order suspended Neely's license, but stayed the suspension, placed him on probation for three years, ordered physical and psychiatric evaluations, and prohibited Neely from prescribing medications to himself or his family.
In January 2004, KEYE–TV in Austin ran a 7–minute investigative report by Nanci Wilson (collectively “KEYE”) regarding Neely. The transcript of the entire broadcast is attached as Appendix A. The broadcast began with anchor Fred Cantu asking:
If you needed surgery would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?
Co-anchor Judy Maggio continued:
A central Texas couple says they didn't learn about this until it was too late. They're outraged the [Board] is allowing Dr. Byron Neely to continue to practice. KEYE news investigative reporter Nanci Wilson tells us if you go to St. David's Hospital with a head injury you could be Dr. Neely's next patient.
Wilson then interviewed Paul Jetton, who related that Neely recommended surgery after an MRI indicated he had a brain tumor. Wilson stated that the hospital discharged Jetton despite the fact that a bacterial infection set in at the surgical site. Wilson continued:
The result: numerous surgeries and a life of disability. Paul's wife, Sheila, says what they learned from other doctors was the final blow.
Sheila Jetton then stated:
Every neurosurgeon that's looked at Paul's MRIs from before Neely operated on him have [sic] said they would have never done surgery. They would have watched him with MRIs over years.
Wilson segued to discuss the Wu case, relating that Neely discovered and removed malignant melanoma from Wu's brain during surgery and that Wu committed suicide after learning of the diagnosis. Wilson then stated that when
the Travis County Medical Examiner's office, analyz[ed] Wu's brain [ ], examiners noted no residual metastatic melanoma. Meaning Wei Wu did not have brain cancer.
Wilson continued:
The [Board] investigated Dr. Neely. The board found Neely had a history of hand tremors and that between 1999 and 2002, Dr. Neely was writing prescriptions, not only for his patients but for himself as well. Narcotics, muscle relaxers and pain killers. Something former patient Paul Jetton finds shocking.
Paul Jetton commented:
Narcotics, opiates, I mean it's just things that, I mean things that they don't even let people operate machinery or drive cars when they're, when they're taking them and this guy's doing brain surgery on people. I mean it's just, even now I'm just, it's just incredulous, you just can't even believe that it even happened.
Wilson then related that the Order placed Neely on probation, required him to see a psychiatrist, and prohibited him from prescribing to himself or his family. Wilson interviewed a Board representative and asked:
But how would they know if he is using? He can get somebody else to prescribe him. I mean he could say, “I've followedthe order.”.... How do we, how do we know that he's, that we're not putting somebody right back out there to do the same thing he was doing before?
The Board representative responded:
That's a very good question and why this order doesn't include drug testing, I, I honestly don't know the answer to that.
The broadcast then included a statement from Paul Jetton:
I think it's just deplorable, I mean if, if it was another profession, uh, the guy would be in jail.
Wilson related a comment from Neely's attorney that
two highly qualified neurosurgeons who reviewed the case agree with the medical decisions made by Dr. Neely. In addition, the [Board] investigated the Jetton case and found no wrong doing.
Wilson noted that Neely's hospital had a pending investigation regarding whether to continue Neely's privileges. The broadcast ended by noting that the Jettons settled their suit with Neely, Wu's suit was dismissed, the other suits remained pending, and the Board posts final decisions on its website.
After the report aired, Neely claims his practice collapsed. His referrals from other physicians dwindled, existing appointments cancelled (citing the broadcast as the reason for the cancellation), his income diminished, and his home went into foreclosure. He and his professional association (collectively “Neely”) sued KEYE 6 for libel. KEYE moved for summary judgment, which the trial court granted without specifying the grounds. Neely raised seven issues in the court of appeals, three of which are relevant here: (1) the trial court erred generally by granting summary judgment; (2) the trial court erred because Neely had probative evidence on each element of his...
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