Davidson v. Glenny

• Citation: 14 Wash.App.2d 370,470 P.3d 549
• Decision Date: 24 August 2020
• Docket Number: No. 80062-1-I,80062-1-I
• Court: Washington Court of Appeals
• Parties: Bruce L. DAVIDSON, M.D., a single person, Appellant, v. Robb W. GLENNY, M.D., individually, and Shawn J. Skerrett, M.D., individually, Respondents.

14 Wash.App.2d 370
470 P.3d 549

Bruce L. DAVIDSON, M.D., a single person, Appellant,
v.
Robb W. GLENNY, M.D., individually, and Shawn J. Skerrett, M.D., individually, Respondents.

No. 80062-1-I

Court of Appeals of Washington, Division 1.

FILED August 24, 2020

Charles Philip Rullman III, Jacob Michael Downs, Corr Downs PLLC, 100 W. Harrison St., N440, Seattle, WA, for Appellant.

Michael F. Madden, Carol Sue Janes, Bennett Bigelow & Leedom PS, 601 Union St. Ste. 1500, Seattle, WA, for Respondents.

PUBLISHED OPINION

Verellen, J.

470 P.3d 552

14 Wash.App.2d 373

¶1 Government officials may be shielded from individual liability by absolute privilege when a compelling need shows immunity is required to properly carry out the duties they have the authority to fulfill. The limited record at this stage of the proceedings shows Dr. Robb Glenny and Dr. Shawn Skerrett had authority to make only recommendations about reappointing Dr. Bruce Davidson. They had no authority to act, so no compelling need supports an absolute privilege. No Washington case has conferred an absolute privilege upon a government employee with such limited authority.

¶2 Although RCW 28B.10.648 confers a conditional statutory immunity upon individual faculty members who participate in peer reviews in good faith, Davidson alleges his former colleagues acted in bad faith. Davidson alleged facts sufficient to survive a motion for judgment on the pleadings.

¶3 Therefore, we reverse the trial court's judgment on the pleadings in favor of Drs. Glenny and Skerrett.

14 Wash.App.2d 374

FACTS

¶4 As alleged,¹ the University of Washington (UW) School of Medicine chose not to renew the annual appointment of Dr. Bruce Davidson, a long-time volunteer clinical professor at Harborview Medical Center, following a faculty meeting to discuss reappointments. During that meeting, Dr. Robb Glenny and Dr. Shawn Skerrett told the faculty about allegations against Davidson of poor patient care and violations of professional boundaries even though they knew the allegations had been investigated and determined to be unfounded. The faculty chose not to renew Davidson's appointment because of their statements. Davidson sued Glenny and Skerrett for defamation, false light, and negligence. Glenny and Skerrett moved for judgment on the pleadings and attached portions of the UW Faculty Code as well as their biographies from the university's website. The court considered the motion, including the attached materials, concluded Glenny and Skerrett were shielded by an absolute privilege, and dismissed Davidson's complaint.

¶5 Davidson appeals.

ANALYSIS

¶6 As a threshold matter, Davidson contends the court erred by considering materials outside the pleadings.

¶7 Generally, when considering a CR 12(c) motion for judgment on the pleadings, a trial court may consider only the factual allegations contained in the complaint.² But

14 Wash.App.2d 375

when a complaint alleges the contents of documents and does not attach them to the complaint, a court may consider those documents as well.³ Because Davidson's complaint quotes at length from the UW Faculty Code,

470 P.3d 553

albeit without quotation marks,⁴ the court could consider it. And although the complaint does not refer to the website biographies of either Glenny or Skerrett, Davidson conceded to the trial court that any consideration of their biographies was harmless.⁵ Davidson does not show he was prejudiced by the court's consideration of either the UW Faculty Code or the respondents’ biographies.

¶8 We review a CR 12(c) dismissal de novo.⁶ At this stage, a court should dismiss a complaint " ‘only when it appears beyond doubt’ that the plaintiff cannot prove any set of facts that ‘would justify recovery.’ "⁷ We review the existence of a privilege de novo as a question of law.⁸

¶9 Davidson argues the court erred by concluding Glenny and Skerrett possessed an absolute common law privilege shielding their communications during the faculty meeting discussing his reappointment. The trial court relied solely on their possession of an absolute privilege to dismiss Davidson's complaint. No one

14 Wash.App.2d 376

argued and the trial court did not address any statutory immunity. Glenny and Skerrett contend they were shielded by absolute privilege as supervisors evaluating Davidson's work.⁹

¶10 First, we consider the common law absolute privilege. An absolute privilege can shield a government official from any liability.¹⁰ The "extraordinary breadth of an absolute privilege" limits it to "cases in which the public service and administration of justice" require it.¹¹ The privilege exists for pragmatic reasons: if government officials feared their acts could expose them to civil suits, even if the acts were authorized by law, "[i]t would seriously cripple the proper and effective administration of public affairs as [e]ntrusted to the executive branch of government."¹² This pragmatic need is balanced against an individual's right to be free of defamatory attacks.¹³ An official's rank alone does not decide whether their acts are shielded by absolute privilege.¹⁴

It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted—the relation of the act complained of to ‘matters committed by law to his control or supervision,’—which must provide the guide in delineating the scope of the rule which

14 Wash.App.2d 377

clothes the official acts of the executive officer with immunity from civil defamation suits.^{[15 ]}

¶11 A defendant advocating for an absolute privilege must first establish

470 P.3d 554

they had the authority to carry out the allegedly injurious acts.¹⁶ Next, the defendant must show there is a compelling public policy justification for an absolute privilege by balancing the scope of the official's authority, the pragmatic need for the official's acts to be shielded, and the plaintiff's right to be free from injury.¹⁷

¶12 Glenny and Skerrett argue statutes governing UW and the UW Faculty Code confer hiring authority upon them as members of the UW faculty. RCW 28B.20.130(2) grants the Board of Regents authority to employ "members of the faculty, and employees of the institution, who ... shall hold their positions during the pleasure of said board of regents." Glenny and Skerrett do not show any statute directly conferring authority upon UW clinical or teaching faculty to make employment decisions regarding other faculty.¹⁸ Although RCW 28B.10.528 grants the Board of Regents the ability to delegate its authority, Glenny and Skerrett fail to show it delegated hiring authority to them through the UW Faculty Code.

¶13 Section 24-51 of the Faculty Code provides "[t]he President and the appropriate college or school faculty

14 Wash.App.2d 378

share responsibility for recommending faculty appointments to the Regents," so "[t]he appropriate faculty, therefore, ... shall provide the Regents, through the President, with the information needed for a wise decision."¹⁹ Section 24-53 of the Faculty Code explains the procedure for renewal of nontenure faculty appointments:

A. The voting members of the appropriate department ... shall decide whether to recommend renewal or termination of the appointment. ... The voting faculty of an academic unit may, by majority vote, delegate authority to recommend the renewal of affiliate or clinical faculty. ...

....

B. If this recommendation is a departmental one, the chair shall transmit it to the dean. If the chair does not concur in the recommendation he or she may also submit a separate recommendation.^{[20 ]}

¶14 The Board of Regents retained its statutory authority to make actual hiring decisions and did not delegate it to teaching and clinical faculty.²¹ Because an absolute privilege depends upon a government official acting within their authority,²² and Glenny and Skerrett fail to show they had authority to act, they are outside the scope of government employees whose acts may be shielded by an absolute privilege.²³

470 P.3d 555

14 Wash.App.2d 379

¶15 Even if making a recommendation was an exercise of authority, Glenny and Skerrett do not show a compelling public policy justification for expanding the scope of absolute privilege.²⁴ Historically, an absolute privilege has been extended to three general areas: (1) judicial proceedings, (2) legislative proceedings, and (3) acts of state by important government officials.²⁵ Here, we are not concerned with judicial or legislative proceedings. The history of the doctrine regarding executive officials illustrates its limited scope.

¶16 Spalding v. Vilas, a...