Jacobs v. Frank

• Decision Date: 05 June 1991
• Docket Number: No. 90-320,90-320
• Citation: 60 Ohio St.3d 111,573 N.E.2d 609
• Parties: JACOBS, Appellee, v. FRANK, Appellant.
• Court: Ohio Supreme Court

Page 111

60 Ohio St.3d 111

573 N.E.2d 609

JACOBS, Appellee, v. FRANK, Appellant.

No. 90-320.

Supreme Court of Ohio.

Submitted Jan. 16, 1991.

Decided June 5, 1991.

Syllabus by the Court

1. Public policy concerns dictate that those who provide information to licensing boards pursuant to R.C. 2305.25 be given a qualified privilege in order to aid in the dissemination of information to those boards, thereby improving the quality of health care administered to the general public.

2. When a defendant possesses a qualified privilege regarding statements contained in a published communication, that privilege can be defeated only by a clear and convincing showing that the communication was made with actual malice. In a qualified privilege case, "actual malice" is defined as acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity.

Appellee, Richard M. Jacobs ("Jacobs"), a podiatrist, served as a resident for one year at Saint Vincent Charity Hospital and Health Center for the Ohio College of Podiatric Medicine, under the direction of appellant, Irwin H. Frank ("Frank"). Following his residency, Jacobs worked for Frank at the Podiatry Medical Center, Inc. for another year.

Jacobs claims that he resigned from the Podiatry Medical Center. Frank, however, says that he was unhappy with Jacobs's performance and the two men had several discussions regarding the nonrenewal of Jacobs's contract. According to Frank, once Jacobs discovered he was to be terminated, he resigned. Jacobs submitted a resignation letter on June 30, 1984; Frank sent Jacobs his termination letter on July 1. Jacobs left the employ of the Podiatry Medical Center on July 7.

Approximately seven months after Jacobs left Podiatry Medical Center, he sued both Frank and the Ohio College of Podiatric Medicine in an action unrelated to the instant cause, alleging that he had been fraudulently misled into believing that the residency program in which he had participated would receive accreditation. In his affidavit to support summary judgment in the case at bar, Frank opined: "I believe that Dr. Jacobs's allegations [in that suit] were false and without merit as he had been specifically advised that the satelite [sic ] residency program might not be accredited by the American Podiatry Association."

In the meantime, Jacobs had moved and applied for his license to practice podiatry in Virginia. The Virginia State Board of Medicine (the "board") sent Frank letters on two occasions requesting information regarding Jacobs's fitness to practice. After several requests by the board that he complete the form, on October 25, 1986, Frank finally sent the board a letter indicating that he did not feel Jacobs was ethical and honest, he did not get along well with others, and his character was poor although his professional ability was adequate.

In August 1987, Jacobs sued Frank for libel based upon statements Frank made in the October 25 letter. Frank moved for summary judgment, based upon a qualified privilege Frank claimed was conferred upon him by R.C. 2305.25, which grants immunity for information provided "without malice and in the reasonable belief that such information is warranted by the facts known to him * * *." The trial court granted Frank's request for summary judgment.

In reversing the decision of the trial court, the court of appeals agreed that R.C. 2305.25 granted Frank a qualified privilege, but found that Jacobs presented enough evidence to defeat the privilege by showing Frank acted with "actual malice" in writing the October 25 letter. The appeals court held that the common-law definition of "actual malice" as ill will, spite, or some ulterior motive should be applied in this case.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Robert D. Gary and Jori Bloom Naegele, Lorain, for appellee.

Gallagher, Sharp, Fulton & Norman, Jay Clinton Rice and Kevin C. Alexandersen, Cleveland, for appellant.

Vorys, Sater, Seymour & Pease, John Winship Read, Cleveland, Timm H. Judson, Columbus, Anthony J. O'Malley and Timothy G. Clancy, Cleveland, urging reversal for amicus curiae, Virginia State Bd. of Medicine.

MOYER, Chief Justice.

Our disposition of this case begins with a determination

                as to whether Frank has a qualified privilege pursuant to R.C. 2305.25 that protects the statements he wrote in his October 25 letter. 1  If the statements in Frank's letter are cloaked with a qualified privilege, Jacobs must prove Frank acted with "actual malice" to defeat the protection afforded by the statute
                

QUALIFIED PRIVILEGE

R.C. 2305.25 provides qualified immunity from suit to, among others, members or employees of utilization review, tissue, and peer review committees for actions taken within the scope of their functions. It also provides that: " * * * No person who provides information under this section and provides such information without malice and in the reasonable belief that such information is warranted by the facts known to him shall be subject to suit for civil damages as a result thereof." Thus, in addition to protecting the members and employees of the various review boards and committees, the statute extends limited protection to those who provide information to those review boards and committees.

The law and the public policy supporting it were stated in Hahn v. Kotten (1975), 43 Ohio St.2d 237, 72 O.O.2d 134, 331 N.E.2d 713, as follows: " ' "A publication is conditionally or qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. This general idea has been otherwise expressed as follows: A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he The concept of a qualified privilege is based upon public policy and the need to protect the publication of a communication made in good faith. Id. at 245-246, 72 O.O.2d at 139-140, 331 N.E.2d at 719-720.

has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits." ' " (Emphasis omitted.) Id. at 245-246, 72 O.O.2d at 139, 331 N.E.2d at 719, quoting West v. People's Banking & Trust Co. (1967), 14 Ohio App.2d 69, 72, 43 O.O.2d 197, 199, 236 N.E.2d 679, 681.

Frank appears to have written the October 25 letter in good faith. According to Frank's affidavit, he was reluctant to reduce his conversations with the Virginia board to written form for fear that Jacobs would see the written communication and institute a lawsuit. He finally relented and wrote the letter only after several requests from the board and with assurances that the letter would not be released to Jacobs. As we said in Hahn: " ' "It is generally held that if the defendant publishes the defamatory words to the person interested at the latter's request or solicitation, there is such a relationship between the parties to justify the communication." * * * ' (14 Ohio App.2d at 74 [43 O.O.2d at 200, 236 N.E.2d at 682], citing 1 Harper & James, The Law of Torts, page 445, Section 5.26.)" Hahn, supra, 43 Ohio St.2d at 246, 72 O.O.2d at 140, 331 N.E.2d at 720.

Public policy concerns dictate that those who provide information to licensing boards pursuant to R.C. 2305.25 be given a qualified privilege in order to aid in the dissemination of information to those boards, thereby improving the quality of health care administered to the general public. See Gates v. Brewer (1981), 2 Ohio App.3d 347, 2 OBR 392, 442 N.E.2d 72.

Further, the public has an interest in ensuring that only qualified persons are licensed to practice podiatry. Toward that end, the October 25 letter was limited to addressing the issue of Jacobs's fitness to practice. It specifically states that it is for the board's eyes only. The letter was not intended for public dissemination. Frank felt he had an obligation to convey to the board his honest opinion of Jacobs's abilities as a podiatrist. Thus, we hold that Frank is afforded a qualified privilege pursuant to R.C. 2305.25 that protects the statements he made in the October 25 letter.

ACTUAL MALICE

Since Frank has a qualified privilege with respect to the October 25 letter, Jacobs must demonstrate that Frank acted with "actual malice" in publishing the letter. As this court said in Worrell v. Multipress, Inc. (1989), 45 Ohio St.3d 241, 249, 543 N.E.2d 1277, 1284, rehearing denied (1989), 46 Ohio St.3d 706, 545 N.E.2d 1285: " * * * [O]nce the existence of privilege has been decided, the defense may be lost if the plaintiff proves that the defamatory statement was made with 'actual malice' as defined in Hahn. * * * " Additionally, in order to recover, Jacobs must present clear and convincing proof that Frank acted with actual malice. Varanese v. Gall (1988), 35 Ohio St.3d 78, 518 N.E.2d 1177, certiorari denied (1988), 487 U.S. 1206, 108 S.Ct. 2849, 101 L.Ed.2d 886.

At issue is the appropriate definition of "actual...