Hainer v. American Medical Intern., Inc.

• Decision Date: 21 January 1997
• Docket Number: No. 24702,24702
• Citation: 492 S.E.2d 103,328 S.C. 128
• Court: South Carolina Supreme Court
• Parties: , 13 IER Cases 691 Anne T. HAINER, Petitioner, v. AMERICAN MEDICAL INTERNATIONAL, INC., East Cooper Community Hospital, Inc., Cindy Woltman, Patricia Condon, and Katherine Sellers, Respondents. . Heard

Page 103

492 S.E.2d 103

328 S.C. 128, 13 IER Cases 691

Anne T. HAINER, Petitioner, v. AMERICAN MEDICAL INTERNATIONAL, INC., East Cooper Community Hospital, Inc., Cindy Woltman, Patricia Condon and Katherine Sellers, Respondents.

No. 24702.

Supreme Court of South Carolina.

Heard Jan. 21, 1997.

Decided Oct. 14, 1997.

Rehearing Denied Nov. 19, 1997.

Justin O'Toole Lucey, Mount Pleasant, for petitioner.

E. Douglas Pratt-Thomas and Allison M. Carter of Wise, Pratt-Thomas, Pearce, Epting and Walker, Charleston, for respondents.

WALLER, Justice:

We granted certiorari to review the Court of Appeals' opinion in Hainer v. American Med. Internat'l, Inc., 320 S.C. 316, 465 S.E.2d 112 (Ct.App.1995). We affirm as modified.

FACTS

Petitioner, Anne T. Hainer (Hainer), was a registered nurse at East Cooper Community Hospital (Hospital). She was disciplined by the State Nursing Board for "patient abandonment" when, without notifying appropriate personnel, she resigned her position on July 16, 1989.

Hainer subsequently instituted this action for abuse of process and intentional infliction of emotional distress (outrage) against Hospital, ¹ claiming it wrongfully reported her to the State Nursing Board. The jury returned a verdict of $75,000.00 actual and $225,000.00 punitive damages for Hainer. The Court of Appeals reversed, finding Hospital entitled to a directed verdict on both causes of action. We granted certiorari and instructed the parties to brief the following questions:

1. May a truthful communication be malicious under S.C.Code Ann. § 40-33-936 (1986)?

2. If so, was there any evidence of malice?

3. Was there evidence of abuse of process to withstand a directed verdict motion?

4. Was there evidence of intentional infliction of emotional distress sufficient to withstand a directed verdict motion?

1. MALICE UNDER § 40-33-936

In addressing the abuse of process claim, the Court of Appeals focused on the statutory privilege contained in S.C.Code Ann. § 40-33-936 (1986), which provides that a communication to the Nursing Board is privileged "except upon proof that such communication was made with malice." Essentially, the Court of Appeals held that, as the Board found Hainer guilty of misconduct, Hospital had just cause to report her, and therefore the report could not have been maliciously made. ² Accordingly, it held Hospital was properly granted a directed verdict on this claim.

S.C.Code Ann. § 40-33-936 (1986) provides, in part:

Every communication, whether oral or written, made by ... any person, ... to the Board ... shall be privileged: and no action or proceeding, ... shall lie against any such person, ... on whose behalf such communication shall have been made ..., except upon proof that such communication was made with malice.

It is uncontested the report to the Board was true ³ and that Hospital has a duty to report "misconduct." ⁴ Accordingly, the issue is whether, under such circumstances, a report may ever be deemed malicious.

We find no authority for the proposition that truth negates malice as a matter of law. On the contrary, truth is clearly not dispositive of the element of malice in a number of causes of action. See e.g. Upchurch v. New York Times, 314 S.C. 531, 431 S.E.2d 558 (1993) (truth not a defense to intentional infliction of emotional distress); Huggins v. Winn-Dixie, Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967) (unlike malicious prosecution claim, plaintiff need not prove prior action unfounded to sustain abuse of process claim), see also Hubbard and Felix, The South Carolina Law of Torts, 342 (1990) (hereinafter Hubbard & Felix) (abuse of process claims founded on perversion of process, rather than illegality); Snakenberg v. The Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2 (Ct.App.1989) (tort of wrongful publicizing of private affairs); Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 (Ct.App.1984) (invasion of privacy). ⁵ Accordingly, we find the fact that the report was true does not negate malice as a matter of law.

Further, we are unpersuaded by Hospital's claim that, because it had a statutory duty to report misconduct, malice is precluded. Where the terms of the statute are clear, the court must apply those terms according to their literal meaning. Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993). This Court cannot construe a statute without regard to its plain and ordinary meaning, and may not resort to subtle or forced construction in an attempt to limit or expand a statute's scope. Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). See also Estate of Guide v. Spooner, 318 S.C. 335, 457 S.E.2d 623 (Ct.App.1995) (if Legislature had intended certain result in statute, it would have said so).

Nothing in § 40-33-936 evinces a Legislative intent to exempt truthful communications from a finding of malice. If the fact of the duty negated malice, the Legislature would have granted an absolute privilege since there is a duty to report all perceived misconduct, and the statute makes no distinction for the reporting of truthful versus untruthful information. We therefore find that the filing of a truthful report pursuant to § 40-33-936 does not negate malice as a matter of law. ⁶

Further, we find that, in order to defeat the privilege afforded reports made pursuant to § 40-33-936, a plaintiff must demonstrate the defendant made the communication with common law actual malice. ⁷

Privileged communications are either absolute or qualified. When a communication is absolutely privileged, no action lies for its publication, no matter what the circumstances under which it is published, i.e., an action will not lie even if the report is made with malice. Richardson v. McGill, 273 S.C. 142, 255 S.E.2d 341 (1979); Wright v. Sparrow, 298 S.C. 469, 381 S.E.2d 503 (Ct.App.1989); Crowell v. Herring, 301 S.C. 424, 392 S.E.2d 464 (Ct.App.1990). When qualified however, the plaintiff may recover if he shows the communication was actuated by malice. Id. One publishing under a qualified privilege is liable upon proof of actual malice. Constant v. Spartanburg Steel Products, 316 S.C. 86, 447 S.E.2d 194 (1994). Actual malice can mean the defendant acted recklessly or wantonly, or with conscious disregard of the plaintiff's rights. Constant v. Spartanburg Steel Products, supra. Common law actual malice has also been defined as meaning "the defendant was actuated by ill will in what he did, with the design to causelessly and wantonly injure the plaintiff; or that the statements were published with such recklessness as to show a conscious indifference towards plaintiff's rights." Jones v. Garner, 250 S.C. 479, 488, 158 S.E.2d 909 (1968); see also Hubbard and Felix at p. 398.

Here, § 40-33-936 creates a qualified privilege. Accordingly, where a plaintiff demonstrates the defendant acted with common law actual malice, the privilege of section 40-33-936 does not apply. ⁸

2. EVIDENCE OF MALICE

At trial and before the Court of Appeals, Hospital claimed a truthful communication made pursuant to a statutory duty could never be deemed malicious. Hospital conceded at oral argument before this Court, however, that if we found a truthful report could be malicious, then the matter of the sufficiency of the evidence of malice was for the jury. Accordingly, we need not conduct an exhaustive review of the evidence to determine its sufficiency.

Malice may be proved by direct or circumstantial evidence. Smith v. Smith, 194 S.C. 247, 9 S.E.2d 584 (1940). Proof that statements were published in an improper and unjustified manner is sufficient evidence to submit the issue of actual malice to a jury. Mains v. K Mart, 297 S.C. 142, 375 S.E.2d 311 (Ct.App.1988).

Although circumstantial, there was some evidence from which the jury could infer malice. Accordingly, the issue was for the jury. ⁹

3. DIRECTED VERDICT--ABUSE OF PROCESS

As there was some evidence from which the jury could have inferred malice, we must determine whether Hainer met her burden of proving the remaining elements of abuse of process. We find that she did not and, accordingly, affirm in result the Court of Appeals' holding that a directed verdict was properly granted on the abuse of process claim.

The essential elements of abuse of process are an ulterior purpose and a willful act in the use of the process not proper in the conduct of the proceeding. Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967). Some definite act or threat not authorized by the process or aimed at an object not legitimate in the use of the process is required. There is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. Id.; Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 (Ct.App.1984); Hubbard & Felix, supra at 382-383. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself. Id. Abuse of process requires both an ulterior purpose and a willful act not proper in the regular course of the proceeding. See Sierra v. Skelton, 307 S.C. 217, 414 S.E.2d 169 (Ct.App.1992). ¹⁰

Here, Hainer's evidence is simply insufficient to meet the elements of abuse of process. The evidence, viewed in the light most favorable to Hainer, is that several days after her resignation on July 16, 1989, she had a meeting with Hospital employees at which Hainer was advised she would "have to [be] report[ed] to the State Board of Nursing for patient abandonment." Notably, Hainer did not testify that she was "threatened" with a complaint to the Board if she did not report to work; she testified only that she was told that she would have to be reported. Hainer testified that she heard absolutely nothing more from Hospital until sometime in February, 1990, when she was contacted by the State Nursing Board concerning the complaint which had been filed against her by the Hospital. ¹¹ There is...