Moran v. State

• Citation: 267 Kan. 583,985 P.2d 127
• Decision Date: 09 July 1999
• Docket Number: No. 80,741.,80,741.
• Parties: JON F. MORAN, M.D., Appellant, v. STATE OF KANSAS; THE KANSAS BOARD OF REGENTS; THE UNIVERSITY OF KANSAS MEDICAL CENTER; DANIEL HOLLANDER, M.D.; GLENN E. POTTER; KIM RUSSEL; A.L. CHAPMAN; and JON JACKSON, Appellees.
• Court: United States State Supreme Court of Kansas

267 Kan. 583

985 P.2d 127

JON F. MORAN, M.D., Appellant, v. STATE OF KANSAS; THE KANSAS BOARD OF REGENTS; THE UNIVERSITY OF KANSAS MEDICAL CENTER; DANIEL HOLLANDER, M.D.; GLENN E. POTTER; KIM RUSSEL; A.L. CHAPMAN; and JON JACKSON, Appellees.

No. 80,741.

Supreme Court of Kansas.

Opinion filed July 9, 1999.

Christopher S. Shank, of Shank, Laue & Hamilton, P.C., of Kansas City, Missouri, argued the cause, and Brant M. Laue and Cindi S. Woolery, of the same firm, were with him on the briefs for appellant.

Susan R. Schrag, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Bruce A. Ney, of the same firm, was with her on the briefs for appellees.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Jon F. Moran, M.D., former head of the Department of Cardiothoracic Surgery at the University of Kansas Medical Center (KUMC), brought this action against defendants, alleging that they made false and defamatory statements about him and his stewardship of KUMC's heart transplant program. Individual defendants are KUMC administrators. The district court granted summary judgment in favor of defendants on the ground that Moran had produced no evidence that he suffered damage to his reputation as a result of defendants' statements. Moran appealed from the entry of summary judgment. Defendants cross-appealed on their claim of immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., and on their contention that a defamation plaintiff must show a quantifiable pecuniary or economic loss or detriment. This appeal was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).

Moran claims the district court erred in (1) finding he did not establish that his reputation was damaged by defendants' statements, and (2) requiring that he must show injury to his reputation when defendants have acted with actual malice. In their crossappeal, defendants claim they are immune from liability under the discretionary function exception of the KTCA, and Moran is required to prove special damages or a quantifiable pecuniary or economic loss or detriment in order to make out a prima facie case for defamation.

Moran was chairman of the Department of Cardiothoracic Surgery at KUMC from June 1985 to April 1994. He remained on staff at KUMC until he resigned on March 3, 1995.

At issue are statements made by KUMC administrators in four communications in May 1995: (1) May 7—Kansas City Star newspaper published a lengthy article about the faltering heart transplant program at KUMC. KUMC administrators are quoted and cited. (2) May 10—an open letter from a KUMC administrator about the Star article and the heart transplant program was made generally available to the public by being posted on the Internet. It quoted in full a response prepared by two KUMC administrators to the May 7 Star article. (3) May 11—Kansas City Star published the KUMC administrators' response to the May 7 article as a Viewpoint commentary. (4) May 17—the Viewpoint commentary was posted on the Internet.

(1) The impact of the Star's May 7 article lay in its pairing of the fact that no heart transplants had been performed at KUMC from early May 1994 to late March 1995 with the paradox that patients continued to be admitted and added to the heart transplant waiting list. In investigating the circumstances, the reporter talked to Moran and Dr. Clay Beggerly, the program's two former surgeons. The account that Moran gave the reporter was that he had complained for many months of a lack of surgeons and qualified nurses. When the complaints produced no changes, Moran asked twice in early June 1994 that the program be suspended. His request was not granted. In early November, he told administrators that he would do no more heart transplants.

Jon Jackson, an associate administrator of KUMC, was quoted in the Star's article:

"`There was not any indication given to us that he was not operating a program,' said Jon Jackson, an associate administrator. `Had Dr. Moran told us that we're not going to do transplants prior to his letter of Nov. 4, we would have made other arrangements for those procedures to take place.'"

Kim Russel, chief operating officer, was quoted as denying Moran's allegations of shortages of qualified nurses.

(2) The May 10 open letter from A.L. Chapman, Acting Executive Vice Chancellor, began by quoting the entire response prepared by Daniel Hollander, Executive Dean, and Glenn Potter, Vice Chancellor for Hospital Administration, to the May 7 Star article. Chapman added several paragraphs, including the following one:

"It is important to point out that after Dr. Moran announced he would do no more transplants, Dr. Hannah and KU cardiologist Dr. Steven Gollub jointly accepted responsibility to accept or reject donor hearts. A review shows that none were turned down for other than medical reasons after November, 1994. To be acceptable, donor hearts must closely match tissue type and body size of the recipient as well as meet other clinical criteria."

(3) The Viewpoint commentary by Hollander and Potter placed responsibility for collapse of the heart transplant program squarely on Moran:

"For about 10 years, heart transplantation surgery was headed by Dr. Jon Moran. As the physician in charge, it was Dr. Moran who made medical decisions about his patients.

"It was Dr. Moran who decided which patients were put on a waiting list for a heart transplant, and which hearts to accept or reject. These medical decisions were made by Dr. Moran, not by hospital or medical center administrators.

"As shown by the date in the May 7 article, Dr. Moran on his own began to curtail the volume of heart transplant surgery in 1993. He did fewer transplants in 1993 and 1994 than he had in previous years.

"Although he continued to assign new patients to his waiting list, he began to refuse almost all hearts that were offered to him for transplantation, but did not notify administration of this fact until November 1994. The hearts that were offered to Dr. Moran—but refused by him—were then offered to other national programs and were either accepted or declined by them. Finally, in November 1994, Dr. Moran formally announced that he would no longer do heart transplants.

"The May 7 article also alleged that there was a shortage of skilled nursing staff to care for cardiac patients. When Dr. Moran expressed concern about nurse staffing, a committee of faculty physicians and hospital representatives was appointed. Nursing issues were reviewed and addressed to the complete satisfaction of hospital administration."

(4) On May 17, the Viewpoint commentary was posted on the Internet.

For the purpose of their motion for summary judgment, defendants did not dispute that they made the statements Moran complains of, that the statements were false and defamatory, and that Moran had proven actual malice. For his part, Moran conceded that he is required to show actual malice.

In granting defendants' motion for summary judgment, the district court gave only one reason for its decision: "Based upon the record established by the parties and presented to the court in this motion the court can find no evidence that plaintiff suffered any damage to his reputation as a result of any statements made by any defendant."

We first consider whether Moran established that his reputation was damaged. The district court made findings of fact with regard to Moran's reputation:

"11. Plaintiff claims he was damaged because the frequency with which he has been approached about considering positions as division or department chief of an existing CTS (cardiothoracic surgery) program or to start a new CTS or heart transplant program or as a transplant surgeon in an existing transplant program, have decreased dramatically since the subject Statements....

"12. Plaintiff claims he was damaged because the frequency with which he has been asked to write scholarly articles or to review articles submitted for publication in major national journals has decreased....

"13. Plaintiff claims his reputation within the academic surgical community, as well as the community at large, and as a heart transplant surgeon has been damaged;

"14. Plaintiff claims his ethical reputation has been damaged....

"15. Plaintiff claims that his reputation for reliability in keeping academic medical matters out of the public view has been damaged....

"16. Plaintiff is claiming that his reputation with insurance company executives has been impaired because they were sent summaries of the Subject Statements. He does not know what, if any action these unnamed executives took as a result of having seen the subject memos. He believes that, in the future, if he became involved with a heart transplant program and they applied to be a Center of Excellence with one of these institutions or if he applied to any third-party to do cardiothoracic surgery as a provider for an insurance company they might not want to list him as a provider any more. This speculation as to events that could take place in the future is based only on the memos themselves which plaintiff believes were sent to insurance company executives.

....

"22. In his answers to defendants' interrogatories, plaintiff set forth a number of ways in which defendants' defamatory statements had harmed his reputation: `While I am still able to practice as a cardiothoracic surgeon, my academic advancement has been markedly impaired by defendants' actions. Specifically, the frequency with which I have been approached about considering positions as division or department chief of an existing CTS program, or to start a new CTS (or heart transplant) program, or as a transplant surgeon in an existing transplant program, have decreased dramatically since the defendants' libelous communications. Similarly, the frequency with which I have been asked to write scholarly articles or to review articles submitted for publication in major journals

...