Goodley v. Sullivant

• Decision Date: 24 May 1973
• Court: California Court of Appeals Court of Appeals
• Parties: Paul H. GOODLEY, Plaintiff, Respondent, and Cross-Appellant, v. Richard A. SULLIVANT, Defendant and Appellant, Philip M. Halloran (sued as Doe 11), Defendant and Respondent. Civ. 39870.

Page 451

108 Cal.Rptr. 451

32 Cal.App.3d 619

Paul H. GOODLEY, Plaintiff, Respondent, and Cross-Appellant, v. Richard A. SULLIVANT, Defendant and Appellant, Philip M. Halloran (sued as Doe 11), Defendant and Respondent.

Civ. 39870.

Court of Appeal, Second District, Division 5, California.

May 24, 1973.

Musick, Peeler & Garrett, Joseph A. Saunders and Lawrence Stickney, Los Angeles, Home & Clifford and Richard R. Clifford, North Hollywood, for defendant and appellant Richard A. Sullivant.

Spray, Gould & Bowers, Philip L. Bradish, and Ellis J. Horvitz, Los Angeles, for defendant and respondent Philip M. Halloran.

Irwin O. Spiegel, Los Angeles, for respondent and cross-appellant Paul H. Goodley.

STEPHENS, Associate Justice.

This appeal arises out of civil litigation in which plaintiff Dr. Goodley sued defendants Dr. Sullivant, Dr. Halloran, Dr. Wood, and nurse Lovelady in defamation and in interference with the practice of a profession.

In brief, prior to July 13, 1965, plaintiff had been a member of the medical staff of Jared Sidney Torrance Memorial Hospital (hereinafter either the hospital or Torrance Memorial). On June 12, 1965, nurse Lovelady attended a meeting of the hospital's Liaison Committee and made statements charging Dr. Goodley with having committed acts of professional misconduct. On July 13, 1965, Dr. Sullivant and Dr. Wood attended a meeting of the hospital's Executive Committee whereat Dr. Sullivant repeated the charges of nurse Lovelady, charged Dr. Goodley with having committed other acts of professional misconduct, and recommended that the Executive Committee either censure Dr. Goodley, or cause the matter to be considered by the hospital's Grievance Committee. ¹ The Executive Committee thereupon voted to suspend Dr. Goodley from the Hospital's medical staff. Dr. Sullivant then informed Dr. Goodley by letter of the Executive Committee's action and further informed Dr. Goodley of the right to appeal to the hospital's Grievance Committee.

Dr. Goodley did request a hearing before the Grievance Committee, and, in preparation for that hearing, Dr. Halloran, as chairman of that committee, was alleged to have republished to the other members of the committee ² the aforementioned statements of Dr. Sullivant. The Grievance Committee met on July 27, 1965, heard a statement by Dr. Goodley, and voted to recommend to the Executive Committee that Dr. Goodley's suspension be reduced to one year.

Dr. Goodley thereafter instituted litigation against Dr. Sullivant, Dr. Halloran, Dr. Wood, and nurse Lovelady alleging (1) defamation, and as a direct consequence of the defamation, (2) interference with the practice of a profession. At trial, and after Dr. Goodley had presented his case, nurse Lovelady was granted a directed verdict. The jury returned general verdicts against Dr. Goodley and in favor of Dr. Wood, in favor of Dr. Goodley and against Dr. Sullivant for $75,000, and in favor of Dr. Goodley and against Dr. Halloran for $35,000. Dr. Sullivant and Dr. Halloran each moved for judgment notwithstanding the verdict, and the motion was denied as to Dr. Sullivant, but was granted as to Dr. Halloran. Dr. Sullivant appeals from the judgment and from the denial of his motion for judgment notwithstanding the verdict. Dr. Goodley appeals from Dr. Halloran's judgment notwithstanding the verdict.

The judgment in favor of Dr. Goodley and against Dr. Sullivant must be reversed, and the judgment against Dr. Goodley and in favor of Dr. Halloran must be affirmed. Civil Code section 47, subdivision 2, affords a privilege for any publication made in 'any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law . . ..' This privilege has been interpreted to be absolute. (Albertson v. Raboff, 46 Cal.2d 375, 379, 295 P.2d 405.) This privilege has also been 'interpreted to encompass those proceedings which resemble judicial and legislative proceedings, such as transactions of . . . quasi-judicial and quasi-legislative proceedings. (Citations.)' (Ascherman v. Natanson, 23 Cal.App.3d 861, 865, 100 Cal.Rptr. 656, 659 (Hrg.den.).)

In Ascherman v. Natanson, Supra, a Dr. Ascherman had applied for staff privileges at a public hospital. The application was denied, but Dr. Ascherman was told that he was entitled to a hearing. Dr. Ascherman requested the hearing, and, in preparation for the hearing, the hospital's attorney conducted an interview with one of Dr. Ascherman's former colleagues, a Dr. Natanson. During the course of this interview, Dr. Natanson made defamatory remarks about Dr. Ascherman, and Dr. Ascherman thereafter sued Dr. Natanson for defamation. At trial Dr. Natanson won a judgment notwithstanding the verdict. On appeal, the court held that Dr. Natanson's remarks had been 'related to' (Id., at p. 865, 100 Cal.Rptr. 656.) the hospital's pending hearing, that the hearing was quasi-judicial, and, therefore, Dr. Natanson's remarks were subject to the absolute privilege afforded by Civil Code section 47, subdivision 2.

Dr. Goodley argues, however, that the court in Ascherman v. Natanson was wrong in holding that the absolute privilege of Civil Code section 47, subdivision 2, is applicable to the quasi-judicial proceedings of a medical committee. Specifically, Dr. Goodley argues that the proceedings of a medical committee are not controlled by the absolute defamation-privilege of Civil Code section 47, subdivision 2, but, instead, are controlled by a conditional defamation-privilege afforded by Civil Code section 43.7. ³ The rationale of Dr. Goodley's argument is as follows: Section 47, subdivision 2, is a general defamation-privilege that is directed to all executive, legislative, and judicial proceedings; section 43.7, however, is a particular defamation-privilege that is directed exclusively to the medical profession; particular statutes control over general statutes, and, therefore, the conditional privilege of section 43.7 must control over the absolute privilege of section 47, subdivision 2.

The difficulty with Dr. Goodley's argument, however, is that section 43.7 has nothing to do with defamations. Section 43.7 provides a conditional privilege 'for any Act or Proceedings undertaken or performed' by the members of a medical committee. (Emphasis added.) 'Hospital staffs and medical and other professional organizations (as defined in (section 43.7)) commonly have committees to review the practices of its members and to recommend disciplinary action. Section 43.7 will prevent civil suits for damages by expelled or disciplined members against any such committee member . . ..' (36 Calif. State Bar Journal (1961) at p. 667.) It seems clear, therefore, that section 43.7 is concerned with the Actions taken by a medical committee (i.e., refusing, suspending, or revoking hospital privileges to any doctor) and is not concerned with possible defamatory publications made by such a committee. Since we hold that section 43.7 is not applicable to defamations, it follows then that section 43.7 is not inconsistent with section 47, subdivision 2, and Dr. Goodley's argument, therefore, must fail.

Dr. Goodley contends further that, in any event, the rule of Ascherman v. Natanson must be limited to public hospitals, and therefore should not be available to Dr. Sullivant and Dr. Halloran because Torrance Memorial is a private hospital. We disagree. In Ascherman v. Natanson (at p. 866, of23 Cal.App.3d, at 659, of 100 Cal.Rptr.), the court held that '(t)he primary factors which determine the nature of (quasi-judicial) proceedings are: (1) whether the administrative body is vested with discretion based upon investigation and consideration of evidentiary facts, (2) whether it is entitled to hold hearings and decide the issue by the application of rules of law to the ascertained facts and, more importantly (3) whether its power affects the personal or property rights of private persons (Citation).' In accordance with this test, we note that Business and Professions Code section 2392.5 provides in part that a hospital having five or more physicians must establish rules that specifically...