Russell v. Thomson Newspapers, Inc.
| Decision Date | 23 November 1992 |
| Docket Number | No. 900432,900432 |
| Citation | 842 P.2d 896 |
| Parties | Shelley RUSSELL, Plaintiff and Appellant, v. THOMSON NEWSPAPERS, INC., dba The Daily Spectrum, and Kristine Messerly, Defendants and Appellees. |
| Court | Utah Supreme Court |
B. Ray Zoll, Salt Lake City, for plaintiff and appellant.
Randy L. Dryer, Salt Lake City, for defendants and appellees.
This case arises out of a news report published December 11, 1985, in The Daily Spectrum, a Cedar City newspaper. The story concerned certain disciplinary proceedings initiated by the Utah State Division of Licensing (the "Division") against plaintiff Shelley Russell, a nurse at Valley View Medical Center in Cedar City, Utah, and Dr. David Brown, a Cedar City physician. As a result of the report, Russell filed suit against the reporter of the story and against The Daily Spectrum, alleging defamation, invasion of privacy, and intentional infliction of emotional distress. She appeals from an order entered August 8, 1990, granting defendants' motion for summary judgment and dismissing her claims. We reverse.
A trial court should grant summary judgment only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. 1 Where the parties assert a factual dispute, summary judgment is appropriate only when, viewing the facts in a light most favorable to the party opposing the motion, the moving party is nevertheless entitled to judgment. 2 Following this standard, we recite the facts in a light most favorable to plaintiff Russell, the party opposing summary judgment.
On December 12, 1985, The Daily Spectrum ran an article regarding action taken by the Division against Dr. David Brown. The article quoted Robert Bowen, the director of the Division. In addition to the charges against Brown, it referred to charges against plaintiff and to actions taken by Brown in prescribing drugs and medical treatment for her. Plaintiff contends that the article contained several defamatory statements concerning her, including the following excerpts:
Brown overprescribed narcotic drugs to an operating room nurse who was "habituated to controlled substances," did medical procedures that were "not medically indicated" and did "ethical no-no's," Bowen said.
....
Many of the charges relate to Brown's treating nurse Russell, including allegations that he "ordered and administered quantities of controlled substances in excess of what is generally medically accepted as adequate."
....
Brown also allegedly failed to order adequate monitoring of Russell's condition, and administered controlled substances to her intravenously without an established intravenous access, Bowen said.
....
Brown's repeated administration of narcotic drugs to Russell, noted in the record to have been "habituated to controlled substances," was an action called "addictive and not justifiable," he said.
....
Brown is recorded to have performed dialation [sic] and curettage procedures four times from April 1982 to August 1983 on Russell, the record says.
"That number of procedures in that period of time were [sic] not medically indicated," the charges state.
When asked what that procedure was, Bowen said, "It's for abortion."
....
Prior to her termination, Russell's license to practice as a registered nurse was put on probation in April 1984 after the Professional Licensing Board found her "impaired because of drugs," Bowen said.
Charges leading to Russell's probationary status include a charge that in early 1984 she received prescribed drugs from several physicians without making each doctor aware of the others' actions, Bowen said.
....
She was allegedly "impaired because of drugs" from February to August 1984, he said.
Reporter Kristine Messerly of The Daily Spectrum wrote the article based on the following background information. Sometime prior to September of 1984, the Division began investigating the conduct of Brown and Russell. After interviews with numerous doctors, nurses, and administrators in the Cedar City area, the Division filed two petitions to revoke the licenses of both Brown and Russell. The Division charged Brown with unprofessional conduct based on allegations of (a) improper or inadequate medical care given to certain patients; (b) improper prescription of controlled substances to himself and members of his family; (c) improper prescription of controlled substances to Russell in excess of medically indicated dosages and in violation of medically accepted procedures; and (d) performance of improper or medically unnecessary procedures, namely four dilation and curettage procedures performed on Russell.
The Division also charged Russell with unprofessional conduct based on various alleged improprieties, including improperly obtaining controlled substances from several physicians without informing them of her other prescriptions, misrepresenting her physical condition in order to obtain controlled substances, and practicing nursing while impaired by drug dependence.
On November 13, 1985, Brown entered into a stipulation with the State of Utah to resolve the charges against him. While Brown did not admit or deny any of the allegations against him, he agreed to a 6-month suspension of his license to practice medicine and a 120-day suspension of his license to administer or prescribe controlled substances. According to the terms of the stipulation, the Division would keep its files confidential and would answer all inquiries into the results of the investigation by reference to the petition against Brown and the stipulation reached with him.
On April 15, 1985, Russell and the State of Utah entered into a stipulation allowing Russell to continue to practice nursing subject to the requirement that she submit to random drug testing for a period of one year. At the end of the 1-year period, the Division would dismiss the petition against her if the testing results were favorable.
On December 10, 1985, The Daily Spectrum received an anonymous tip that the Division had taken unspecified disciplinary action against Brown and a nurse. Reporter Messerly followed up on the call by telephoning the Utah Medical Association, which referred her to the Division. She then phoned the Division, where an unidentified woman told her that disciplinary action had been taken against Russell and Brown. The woman referred Messerly to Robert Bowen, the director of the Division and the State of Utah's representative designated to respond to press inquiries about disciplinary matters.
During the ensuing conversation, Bowen read the petitions against Brown and Russell and the stipulations entered in settlement of the charges. Bowen stated that the petitions and stipulations were matters of public record, but that the underlying investigative files were confidential. Bowen then responded to additional questions by Messerly. During this conversation, Bowen told Messerly about a rumor of romantic involvement between Brown and Russell and said that doctors and nurses often "trade drugs for sex." Bowen and Messerly also discussed the dilation and curettage procedures. The parties presented conflicting evidence as to whether it was Bowen or Messerly who identified abortion as the reason for the procedures. 3 Plaintiff presented evidence that Messerly asserted that the procedures were for abortions and then attributed the abortion quote to Bowen. Defendants presented evidence that Bowen told Messerly that the four dilation and curettage procedures performed upon Russell were for abortions.
After the article ran, plaintiff filed this action against the State of Utah, The Daily Spectrum, and Messerly based on the material published in the article. She brought claims for defamation, invasion of privacy, and intentional infliction of emotional distress. The trial court dismissed the action against the State of Utah on its motion for summary judgment based on governmental immunity.
Defendants Messerly and The Daily Spectrum moved for summary judgment, claiming that statutory and common law privileges protected the statements printed in the article. 4 Despite conflicting evidence concerning the source of the abortion statement, the trial court granted defendants' motion for summary judgment. The trial court construed Utah Code Ann. § 45-2-3(4) to afford defendants a conditional privilege that required plaintiff to show actual malice to state a cause of action for defamation. The court found that no genuine issue of fact existed as to whether plaintiff had shown actual malice and therefore dismissed her cause of action. In addition, the court dismissed plaintiff's claims of invasion of privacy and intentional infliction of emotional distress.
The existence of a privilege is a question of law for the court. We therefore give no deference to the trial court's determination that defendants' statements are privileged, but review it for correctness. The trial court found the statements in The Daily Spectrum privileged under Utah Code Ann. § 45-2-3(4), the fair report privilege. For a statement to qualify for privilege under this statute, it must fulfill the following elements: It must be a report of a judicial, legislative, or other public official proceeding or of anything said in the course thereof or of a charge or complaint upon which a warrant shall have been issued or an arrest made; it must be a fair and true report of the proceeding or charge; and it must be made without malice. 5
Plaintiff claims that the article does not meet the requirements of this statute because no warrant issued against her or against Brown. Plaintiff relies on our case of Seegmiller v. KSL, Inc. 6 for the proposition that section 45-2-3(4) applies only to those charges or proceedings upon which a warrant has issued. In Seegmiller, we stated:
To extend the concept of a qualified privilege to mere allegations of criminal conduct is impermissible.... [S]ince § 45-2-3(4) and §...
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