Ravnikar v. Bogojavlensky

• Decision Date: 03 February 2003
• Citation: 782 NE 2d 508,438 Mass. 627
• Parties: VERONICA RAVNIKAR v. SERGEI BOGOJAVLENSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 627

782 NE 2d 508

VERONICA RAVNIKAR v.SERGEI BOGOJAVLENSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

December 3, 2002.

February 3, 2003.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Paul F. Kelly(Michael Doheny with him) for the plaintiff.

John J. Ryan, Jr.(Emily G. Coughlin with him) for the defendant.

COWIN, J.

The plaintiff, Veronica Ravnikar, complains that the defendant, Sergei Bogojavlensky, made false statements about her health in 1998.Initially the plaintiff filed suit in Middlesex Superior Court, but, because there was no reasonable likelihood of recovery in excess of $25,000, the action was dismissed for lack of jurisdiction pursuant to St. 1996, c. 358, § 4.¹The plaintiff then sued the defendant in the Newton Division of the District Court Department, alleging defamation, intentional interference with business relations, invasion of privacy (pursuant to G. L. c. 214, § 1B), and unfair competition (pursuant to G. L. c. 93A, § 11).The defendant moved for summary judgment on all counts.In February, 2001, a District Court judge granted the defendant's motion without a written opinion.The plaintiff appealed to the Appellate Division of the District Court, which affirmed the decision of the District Court.The plaintiff appealed from the decision of the Appellate Division and we transferred the case from the Appeals Court on our own motion.

1.Background.We recite the facts in the light most favorable to the plaintiff.SeeHarrison v. NetCentric Corp.,433 Mass. 465, 468(2001).Both the plaintiff and the defendant are physicians specializing in obstetrics and gynecology who practice in Massachusetts.The plaintiff was diagnosed with breast cancer in 1995 and successfully treated.In 1997, a patient who was seeing the defendant for the first time told him during an appointment that she was looking for a "new" gynecologist and she"was also going to see"the plaintiff.The defendant responded, "Oh, she's dying of breast cancer.It's such a shame.She's a young woman."After the patient stated that she would see the plaintiff anyway, the defendant reiterated that the plaintiff's condition was "terminal."The defendant later conceded that, although he had learned from colleagues that the plaintiff had cancer, he had no reason to believe that the plaintiff was terminally ill.The patient eventually went to see the plaintiff and repeated the defendant's remarks.Although the plaintiff was upset by the defendant's statement, there is no evidence that the plaintiff lost any business or suffered any other monetary damage as a result of the comment.

The plaintiff argues in this court that summary judgment was improperly entered on both the defamation and invasion of privacy claims.²We address each claim in turn.

2. Defamation."[The]party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case."Dulgarian v. Stone,420 Mass. 843, 846(1995), quotingSymmons v. O'Keeffe,419 Mass. 288, 293(1995).SeeMulgrew v. Taunton,410 Mass. 631, 632-633(1991)(identical standard for defamation claims).The plaintiff argues, and we agree, that the defendant has failed to make the required demonstration.

To withstand a motion for summary judgment for defamation, a plaintiff must show that: (a)The defendant made a statement, concerning the plaintiff, to a third party.SeeEyal v. Helen Broadcasting Corp.,411 Mass. 426, 430-433(1991);New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co.,395 Mass. 471, 474(1985), and cases cited.The statement may be published in writing or some other equivalent medium (in which case it is designated as libel), or, as in this case, orally (in which case it is designated as slander).SeeDraghetti v. Chmielewski,416 Mass. 808, 812 n.4(1994);Restatement (Second) of Torts§ 568(1977).

(b) The statement could damage the plaintiff's reputation in the community.³SeeEyal v. Helen Broadcasting Corp., supra at 429;Stone v. Essex County Newspapers, Inc.,367 Mass. 849, 853(1975);Poland v. Post Publ. Co.,330 Mass. 701, 704(1953), and cases cited.See alsoRestatement (Second) of Torts, supra at § 559("A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him").

(c)The defendant was at fault in making the statement.SeeGertz v. Robert Welch, Inc.,418 U.S. 323, 347(1974);Jones v. Taibbi,400 Mass. 786, 797(1987).The level of fault required varies between negligence (for statements concerning private persons) and actual malice (for statements concerning public officials and public figures).Id.

(d) The statement either caused the plaintiff economic loss (traditionally referred to as "special damages" or "special harm"), or is actionable without proof of economic loss.SeeRestatement (Second) of Torts, supra at § 558(d),§ 575 comment b. Four types of statements are actionable without proof of economic loss: statements that constitute libel, seeShafir v. Steele,431 Mass. 365, 373(2000); statements that charge the plaintiff with a crime; statements that allege that the plaintiff has certain diseases; and statements that may prejudice the plaintiff's profession or business, seeLynch v. Lyons,303 Mass. 116, 118-119(1939).If the statement comes within one of these four exceptions, a plaintiff may recover noneconomic losses, including emotional injury and damage to reputation.SeeShafir v. Steele, supra;Restatement (Second) of Torts, supra at § 622 comment b, § 623 comment a. An undamaged plaintiff may recover nominal damages.⁴SeeShafir v. Steele, supra;Restatement (Second) of Torts, supra at § 623 special note on remedies for defamation other than damages.

The defendant claims that he is entitled to summary judgment because the plaintiff has failed to show that she was harmed economically by his remarks.The plaintiff does not dispute the lack of economic harm, but maintains that she may still take her case to a jury because the defendant's comments that the plaintiff was dying of cancer were capable of prejudicing her medical practice.⁵

A statement falls within this exception to the economic harm requirement if it alleges that the plaintiff lacks a necessary characteristic of the profession.SeeLynch v. Lyons, supra at 119;Restatement (Second) of Torts, supra at § 573("One who publishes a slander that ascribes to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession ... is subject to liability without proof of special harm").The issue we decide is whether a false claim that a physician is dying of cancer creates an inference that that physician lacks a necessary professional characteristic.We conclude that it does.

A statement that a physician is terminally ill can discourage potential patients by creating the natural inference that death is not far off and that the physician will be distracted by her medical condition and its treatment.A potential patient hearing this type of statement could quite reasonably conclude that any relationship formed with that physician would necessarily be a brief one, and, while the relationship lasts, that the physician's ability to provide care would be impaired.Such a statement thus has the potential to damage a physician's medical practice because patients are more likely to choose a physician on whom they can rely for quality care over the long term.Today physicians compete for patients just as businesspeople compete for customers, and a doctor who cannot offer stable and reliable care to her patients faces the same competitive disadvantage as any other businessperson.⁶See, e.g., Restatement (Second) of Torts, supra at § 573 comment c, illustration 5;Domres v. Perrigan,760 So. 2d 1028, 1029-1030(Fla. Dist. Ct. App.2000).See alsoDavis v. Ruff,25 S.C.L.(Chev.) 17 (1839).It follows that, because a false allegation that a physician is terminally ill may prejudice that physician's practice, such a statement is actionable without proof of economic damage.SeeLynch v. Lyons, supra at 118-119.

3.Invasion of privacy.The defendant argues that the District Court lacks subject matter jurisdiction to hear the plaintiff's invasion of privacy claim.This requires us to again examine how the establishment of the "one trial system" in Massachusetts has affected the subject matter jurisdiction of the District Courts.⁷The new system supplants the remand and removal procedures found in G. L. c. 231, §§ 97-107.For all cases previously governed by those procedures, St. 1996, c. 358(enabling act), provides a mechanism by which a case may be resolved in a single trial in the District Court.⁸The enabling act grants the District Court equitable powers coextensive with those of the Superior Court in all "civil actions otherwise subject to transfer, retransfer, removal and appeal" under G. L. c. 231, §§ 97-107. St. 1996, c. 358, § 3.It also vests the District Court with exclusive jurisdiction over all civil actions in which there is "no reasonable likelihood" that damages in excess of $25,000 will be awarded, again provided that the action was otherwise subject to "transfer, retransfer, removal and appeal" under G. L. c. 231, §§ 97-107. St. 1996, c. 358, § 4.⁹

Despite the language of the enabling act, the defendant argues that, under the one trial system, a District Court may not hear an invasion of privacy claim because the Superior Court retains exclusive jurisdiction over that claim pursuant to G. L. c. 214, § 1B.¹⁰He maintains that a civil action containing such a claim is not subject...