Marshall v. Planz

• Decision Date: 09 April 2001
• Docket Number: No. CIV. A. 97-T-793-S.,CIV. A. 97-T-793-S.
• Citation: 145 F.Supp.2d 1258
• Parties: William G. MARSHALL, Jr., Plaintiff, v. Edward PLANZ, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

145 F.Supp.2d 1258

William G. MARSHALL, Jr., Plaintiff, v. Edward PLANZ, et al., Defendants.

No. CIV. A. 97-T-793-S.

United States District Court, M.D. Alabama, Southern Division.

April 9, 2001.

COPYRIGHT MATERIAL OMITTED

Thomas S. Lawson, Jr., James N. Walter, Jr., Capell & Howard, PC, Montgomery, AL, Jeffrey S. Jacobovitz, Robert A. Jaffe, Kutak Rock, Washington, DC, for William G. Marshall, Jr., M.D., plaintiff.

Kerry Phillip Luke, Edward O. Conerly, Hall, Conerly, Mudd & Bolvig, John F. Mandt, Phillip A. Nichols, Balch & Bingham, Birmingham, AL, Michael Baird Beers, Winston Whitehead Edwards, Beers Anderson Jackson Nelson, Hughes & Patty, PC, Joseph C. Espy, III, A. Lester (Les) Hayes, III, Melton, Espy, Williams & Hayes, P.C., Montgomery, AL, Paul G. Smith, Matthew C. Williams, Smith, Spires & Peddy, Birmingham, AL, for Edward Planz, M.D., Southeastern Cardiovascular Associates, P.C., defendants.

OPINION

MYRON H. THOMPSON, District Judge.

In this lawsuit, plaintiff William G. Marshall, Jr., M.D., asserts state-law defamation claims against defendants Edward Planz, M.D. (his former business partner), and Southeastern Cardiovascular Associates (a corporation of which Marshall was formerly a shareholder and employee). This matter is currently before the court on (1) motions by defendants¹ and nonparty Southeastern Alabama Medical Association (SAMC),² each invoking Alabama's statutory "peer review" privilege, codified at 1975 Ala.Code §§ 6-5-333 and 22-21-8, to prevent testimony at trial; and (2) several related evidentiary and procedural matters raised by the parties as a result of these privilege assertions.³ Although the movants differ somewhat with respect to their factual situations, they each raise the same legal issue: whether Alabama's statutory peer review privilege prevents disclosure of particular testimony at trial. Defendants move to assert the privilege on behalf of Planz. SAMC moves to assert the privilege on behalf of all its present and former employees. In several hearings and conferences on the peer review issue, the availability of the testimony of Dr. Wayne Hannah, SAMC medical director, has become a central issue because four of the five allegedly defamatory statements were conveyed by Planz to Hannah. Because the facts as they pertain to Planz and Hannah are interrelated, the court addresses Planz and Hannah together here.

The parties dispute whether either statute applies to Planz or Hannah. This disagreement is well-taken, for, as the following discussion shows, neither the statutes nor Alabama cases interpreting them provide clear guidance on these facts. There are essentially two issues in dispute: (1) the scope or reach of the peer review process that is covered by the statutes; and (2) the availability of an exception to the privilege for statements made without reasonable belief of their truth or made with actual malice. Marshall argues for a limited formal understanding of peer review, which under the present facts would not extend the privilege to either Planz or Hannah. He also argues that because Planz made his statements either without a reasonable belief that they were true or with actual malice, they are outside the scope of the statutes.

In earlier summary orders rejecting Marshall's arguments on these two and other issues, the court granted Planz's motion as to all statements at issue except the one he made to Dr. James York, and the court granted SAMC's motion as to all statements at issue except the aforementioned statement by Planz to York, and republication by Hannah to other members of the SAMC staff of allegedly defamatory statements by Planz to him.⁴ The court promised that a memorandum opinion in support of the orders would follow, and this is the promised opinion.

I. BACKGROUND

Marshall's lawsuit against Planz stems from Marshall's loss of surgical privileges at SAMC and Flowers Hospital in Dothan, Alabama, in 1997. Marshall asserted claims grounded on §§ 1 and 2 of the Sherman Antitrust Act, 15 U.S.C.A. §§ 1 and 2, and § 4 of the Clayton Act, 15 U.S.C.A. § 15, as well as numerous state-law claims, namely defamation, tortious interference with business and contractual relations, breach of contract, monopolization, and civil conspiracy. The facts leading to the suspension, and ultimate termination, of Marshall's surgical privileges, are given in some detail in Marshall v. Planz, 13 F.Supp.2d 1231 (M.D.Ala.1998) (Thompson, J.), and will not be repeated here in full. Suffice it to say that after extensive peer review investigations and hearings, SAMC terminated Marshall's hospital privileges "on the basis of disruptive and abusive behavior associated with personnel involved in patient care with implications of adverse effect on the quality of patient care," and Flowers Hospital followed suit.

Through a series of orders, the court whittled down Marshall's lawsuit to his state-law claims for defamation, and narrowed these claims to five statements that Planz allegedly made during the brief period from November to December 1996, just before SAMC's suspension of Marshall's surgical privileges in January 1997; and, because Marshall cannot recover any damages that flowed from his suspension and later termination, the court also limited his recoverable defamation damages to this brief period. The five statements Marshall accuses Planz of making during the months of November and December 1996 are the following:

"[1] Dr. Marshall had severe back problems that prevented him from operating safely (at least 3 statements to Dr. Wayne Hannah, SAMC's medical staff director, Dr. James York, an anesthesiologist who was scheduled to provide services to Dr. Marshall's patients, and Dr. Richard Davis, a doctor with the American Medico-Legal Foundation that was reviewing SAMC's cardiac surgery program).

"[2] Dr. Marshall may be suicidal or out of touch with reality and that Dr. Marshall had a significant personality disorder (at least 2 statements to Dr. Wayne Hannah, SAMC's medical staff director, and Dr. Richard Davis, a doctor with the American Medico-Legal Foundation that was reviewing SAMC's cardiac surgery program).

"[3] Dr. Marshall had been suspended from his medical residency program for six months, when he had only taken a one week leave (statement to Dr. Richard Davis, a doctor with the American Medico-Legal Foundation that was reviewing SAMC's cardiac surgery program).

"[4] A quality of care statement that Dr. Marshall did not have the capacity to voluntarily agree to stop surgery (statements to Dr. Wayne Hannah, SAMC's medical staff director, and other members of SAMC's E&C committee); and

"[5] A quality of care statement that Dr. Marshall was hurting inside and really wants someone to make him stop (statements to Dr. Wayne Hannah, SAMC's medical staff director, and other doctors)."

Order on pretrial hearing, entered February 7, 2001, at 3-4.⁵ To succeed on a claim of defamation, Marshall must prove, among other things, that the statement was "published," that is, communicated to another individual. See Walton v. Bromberg & Co., Inc., 514 So.2d 1010, 1011 (Ala.1987). For every witness who can invoke the privilege, Marshall has one fewer witness to establish the publication element of his cause of action.

Whether testimony from Planz and Hannah can be excluded under either or both of Alabama's peer review statutes, § 22-21-8 or 6-5-333, ultimately depends on the application of these statutes in the context in which the statements were made. During the period in question, Hannah was medical director of SAMC. In that position, he served as an ex officio member of SAMC's peer review committees.⁶ Planz was a cardiovascular surgeon with surgical privileges at SAMC and Flowers Hospital. He was not an employee of either institution.

The parties agree that Planz was not an official member of a standing SAMC peer review committee as defined by either §§ 6-5-333 or 22-21-8. With respect to the events leading up to Marshall's January 1997 suspension from SAMC, though, Planz was well aware that a peer review process was underway to examine cardiovascular surgery at SAMC generally, and the practices of Marshall in particular. Planz and Marshall were business partners in Southeastern Cardiovascular Associates. Along with a third partner, Marshall and Planz were the exclusive providers of cardiac surgery services at SAMC and Flowers Hospital. During the summer of 1996, SAMC became concerned with increased morbidity and mortality rates in cardiac surgery. On July 23, 1996, Dr. George Veale, chairman of the SAMC Quality/Risk Management Committee — a peer review committee under Alabama's peer review statutes — asked both Marshall and Planz, among others, to participate in an "ad hoc committee" to review the increase in the number of unexpected deaths resulting from cardiac surgeries. That committee met on September 17, 1996.

Meanwhile, on August 13, 1996, the SAMC Executive and Credential Committee (E&C Committee), also a peer review committee under Alabama's peer review statutes, decided to employ outside consultants, the American Medico-Legal Foundation (AMLF), to conduct an independent clinical review of the hospital's provision of cardiac care.⁷ On October 23, 1996, following the report of the ad hoc committee, but before AMLF issued its report, the E&C Committee voted to have Planz proctor Marshall until the results of the AMLF review were presented. Marshall did not accept the proctorship, but instead challenged the methodology of the peer review process by arguing that his mortality and morbidity rates were elevated because he operated on higher risk patients.

This series of events demonstrates that although Planz was not an official member of a standing peer review committee, he did participate in a peer review of cardiovascular surgery in the summer and fall of 1996. Admittedly, Planz has testified that in his opinion he "had no input into ... Peer Review...