Shapiro v. Health Ins. Plan of Greater New York

• Decision Date: 25 November 1959
• Citation: 7 N.Y.2d 56,194 N.Y.S.2d 509
• Parties: , 163 N.E.2d 333 Alfred L. SHAPIRO, Respondent, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 509

194 N.Y.S.2d 509

7 N.Y.2d 56, 163 N.E.2d 333

Alfred L. SHAPIRO, Respondent, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK et al., Appellants.

Court of Appeals of New York.

Nov. 25, 1959.

Mathias F. Correa, Corydon B. Dunham, Jr., and Gerald A. Fox, New York City, for appellants.

Julius A. Itzkowitz and Samuel Kolatch, Brooklyn, for respondent.

DESMOND, Judge.

This action for libel and slander was brought by a physician-surgeon against Health Insurance Corporation (HIP) and against Dr. Baehr, its president and medical director, and Dr. Daily who was the vice-president, deputy medical director and Medical Control Board chairman of HIP. HIP is a nonprofit membership corporation which sells medical expense indemnity insurance (see Insurance Law, Consol.Laws, c. 28, art. IX-C) to some 500,000 insurees. The indemnified medical care is made available to the insured persons by 32 partnerships of physicians. Each partnership is called a Medical Group. An insured person chooses a particular Group for his medical care. Each Medical Group is an independent contractor with HIP and each has in its membership general practitioners and specialists, including surgeons. The contracts between the Medical Groups and HIP and between HIP and its insureds provide that medical services are to be rendered in accordance with accepted medical and surgical practices and in accordance with standards adopted by the Medical Control Board of HIP. That Control Board has 15 members. Two of them (defendants Baehr and Daily) were employees or officials of HIP, 5 represented the Medical Groups and 8 were prominent physicians from the community.

The several counts of the amended complaint set forth a number of alleged defamatory statements, some oral and some in writing, made by defendants on four dates in December, 1953 and January, 1954. Substantially all the alleged libels and slanders were made by defendants Dr. Baehr and Dr. Daily at HIP Medical Control Board hearings called to investigate plaintiff's qualification to act as surgeon for his Group or were made in communications to Eastern Parkway Medical Group (plaintiff's Group) notifying it of the Medical Control Board's conclusion that plaintiff was not qualified and of the board's decision rescinding its approval of plaintiff as a Group surgeon, or were made to Medical Group Council, an organization of various HIP Medical Groups. It is the theory of the suit that these statements defamed plaintiff by charging him with lack of competence as a surgeon, by stating that his hospital appointments or staff memberships had been cancelled or not renewed by reason of his incompetency, by asserting that he does not meet the minimal requirements for HIP for surgery and that he lacks adequate surgical training and skill, and by charging that plaintiff willfully withheld information from HIP and willfully made misrepresentations to HIP and concealed facts from HIP as to his hospital connections and as to his qualifications and experience.

Each cause of action in the amended complaint alleges that the particular statement therein set forth was made in bad faith, without justification, in disregard of plaintiff's rights and with intent to injure plaintiff professionally, and that each libel or slander was motivated by actual malice. The answer admits that defendants Baehr and Daily, in making the statements, were acting within the scope of their authority and employment with HIP. Admitted also in the answer is the making of some, but not all, of the alleged defamatory statements. The answer then sets up as a first separate defense: that these statements, if made, were published, in the course of defendants' duties, to persons who had an interest in the matter, in good faith and without malice, and so were privileged. The other separate defenses in the answer are to the effect that the statements complained of were true in fact or in substance or were based on trustworthy information believed by defendants to be true.

When the pleadings were complete, defendants moved on affidavits (Rules of Civil Practice, rule 113) for summary judgment on the ground that all the communications complained of were made because of defendants' duties and obligations and so were privileged. Plaintiff, opposing the motion, conceded qualified or conditional privilege and both courts below held that the circumstances and relationships were such as to produce a qualified privilege provided that the publications had been made without actual malice. Malice destroys a qualified privilege, Andrews v. Gardiner, 224 N.Y. 440, 446, 121 N.E. 341, 343, 2 A.L.R. 1371.

Plaintiff, opposing summary judgment, served his own affidavit in which he charged defendants with malice and reckless disregard of his rights and interests. Summary judgment was denied. Both courts below concluded that plaintiff's affidavit showed that there was a triable issue of fact as to actual malice. The Appellate Division granted defendants leave to appeal to this court.

After a brief survey of the applicable law (not really in dispute) we will examine the opposing affidavits to see whether plaintiff has, by evidentiary facts, verified his charge of actual malice, at least to the extent of showing that there is a real, triable issue as to such malice.

"A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation". Byam v. Collins, 111 N.Y. 143, 150, 19 N.E. 75, 2 L.R.A. 129. 'The rule of law that permits such publications grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person. Such privilege is known as a 'qualified privilege.' It is qualified because it does not extend beyond such statements as the writer makes in the performance of such duty and in good faith believing them to be true'. Bingham v. Gaynor, 203 N.Y. 27, 31, 96 N.E. 84, 85. When defendant's statements are presumptively privileged the rule is that, in order to render them actionable, it is 'incumbent on the plaintiff to prove that (they were) false and that the defendant was actuated by express malice or actual ill will. While there are numerous cases in the books in which it is said that as to privileged communications the good faith of the defendant and the existence of actual malice are questions of fact for the jury, the expression must not be misunderstood. Those questions are for the jury only where there is evidence in the case warranting their submission to the jury and the burden of proof is on the plaintiff' (Ashcroft v. Hammond, 197 N.Y. 488, 495-496, 90 N.E. 1117, 1120; see Hemmens v. Nelson, 138 N.Y. 517, 529, 34 N.E. 342, 345, 20 L.R.A. 440). Falsity is not sufficient for an inference of malice. "It must be * * * consistent only with a desire to injure the plaintiff to justify * * * (sending) the question of malice to the jury" (Fowles v. Bowen, 30 N.Y. 20, 26; see Loewinthan v. Le Vine, 299 N.Y. 372, 375, 87 N.E.2d 303, 304). 'By actual malice is meant 'personal spite or ill will, or culpable recklessness or negligence" (Hoeppner v....