Smith v. DiFrancesco

• Decision Date: 19 June 2017
• Docket Number: A17A0404
• Citation: 802 S.E.2d 69
• Parties: SMITH et al. v. DIFRANCESCO.
• Court: Georgia Court of Appeals

341 Ga.App. 786

802 S.E.2d 69

SMITH et al.

v.DIFRANCESCO.

A17A0404

Court of Appeals of Georgia.

June 19, 2017

Steven Jay Strelzik, Mary Trachian-Bradley, Atlanta, for Appellant.

Michael James King, Atlanta, for Appellee.

Miller, Presiding Judge.

In this appeal, we must determine whether the trial court properly found that the defendant doctor was entitled to summary judgment on the plaintiff doctor's claim of defamation per se based on the defendant's transmission of a letter to patients in which the defendant called into question the plaintiff's ability to practice medicine. For the reasons that follow, we reverse the trial court's order and remand the case for further proceedings.

"On appeal from a grant of summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law." (Citation omitted.) Chapman v. C. C. Dickson Co. , 273 Ga. App. 640, 641 (1), 616 S.E.2d 478 (2005).

So viewed, the evidence shows that Cenegenics is a company that provides age management services throughout the country and operates a clinic in Atlanta through CG Physicians, LLC ("CG Physicians"). Dr. Randy Smith is the sole shareholder of CG Physicians and at all relevant times was a licensed physician. Cenegenics and CG Physicians formed a management company to handle the administrative duties of the Atlanta practice.

In 2013, at Cenegenics' insistence, Smith stopped seeing patients at the Atlanta clinic and directed his focus to business development. Dr. Lisa DiFrancesco and another physician were hired to take over patient care in the clinic. In March 2014, Smith left Cenegenics altogether. He then contacted at least some CG Physicians patients by e-mail to offer his anti-aging programs.

At least two of these patients contacted DiFrancesco, expressing concern about the e-mails from Smith. DiFrancesco authorized Cenegenics to send a letter to all CG Physicians patients to address these concerns. In the letter, DiFrancesco made the following statements:

You may have received an e-mail from a physician by the name of Dr. Randy Smith regarding your Cenegenics program. At one time Dr. Smith was a physician with Cenegenics Atlanta.

We are contacting you so that you may make an informed decision if Dr. Smith attempts to contact you to entice you to discontinue your Cenegenics Age Management Program with me....

Dr. Smith is no longer authorized to offer the Cenegenics Program....

While Dr. Smith was an early pioneer in anti-aging medicine, much has changed since his early days in the practice, and a lot has changed over the last year since [Dr. Smith] last had the ability to practice medicine .

If you would like more information about anything you may hear or receive about changing your course of treatment, please feel free to contact us.

(Emphasis supplied.) DiFrancesco sent this letter only to patients of CG Physicians.

Thereafter, Smith sued DiFrancesco for defamation based on her letter to CG Physicians' patients. He also requested equitable relief and punitive damages. The trial court granted summary judgment in favor of DiFrancesco, finding that the letter was not defamatory per se.¹

1. Smith first argues that the trial court erred by granting summary judgment to DiFrancesco because the statement at issue

constituted defamation per se, as it did not require innuendo to be understood as injurious. We agree.

"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule." OCGA § 51-5-1 (a). There are four elements to a defamation claim: "(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm."

(Citation and punctuation omitted.) Mathis v. Cannon , 276 Ga. 16, 20-21 (2), 573 S.E.2d 376 (2002).

Here, the trial court concluded that the statement was not defamatory per se because it required innuendo to be understood as injurious. We disagree. "A written defamatory statement is actionable as either libel per se or libel per quod." (Citation omitted.) Zarach v. Atlanta Claims Assn. , 231 Ga. App. 685, 688 (2), 500 S.E.2d 1 (1998). The trial court found, and Smith conceded, that Smith alleged only libel per se.

Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. Statements that tend to injure one in his trade or business also are libelous per se. When determining whether words are defamatory as a matter of law, courts may not hunt for strained constructions and must rely upon the words themselves in considering whether a statement was defamatory per se. Defamatory words which are actionable per se are those which are recognized as injurious on their face—without the aid of extrinsic proof. However, if the defamatory character of the words does not appear on their face but [they] only become defamatory by the aid of extrinsic facts, they are not defamatory per se, but per quod, and are said to require innuendo. The law is abundantly clear in Georgia—words that are libelous per se do not need innuendo.

(Citations and punctuation omitted.) Id. In other words, "[t]he defamatory character of written material must appear on its face." (Citation omitted.) Id. at 689 (2), 500 S.E.2d 1 ; see also Cottrell v. Smith , 299 Ga. 517, 523 (II) (A), 788 S.E.2d 772 (2016) (words that require extrinsic proof to show their defamatory nature are not libel per se). As our Supreme Court recently explained,

[a]s for defamation in regard to a trade, profession, or office, the kind of aspersion necessary to come under this phase of the rule of [defamation] per se must be one that is especially injurious to the plaintiff's reputation because of the particular demands or qualifications of plaintiff's vocation. The words must either be spoken of the plaintiff in connection with his calling or they must be of such a nature such as to charge him with some defect of character or lack of knowledge, skill, or capacity as necessarily to affect his competency successfully to carry on his business, trade, or profession.

(Citation and punctuation omitted.) Id. at 524 (II) (A), 788 S.E.2d 772. Where a statement is defamatory per se, the element of damages is inferred. Strange v. Henderson , 223 Ga. App. 218, 219, 477 S.E.2d 330 (1996).

Here, the words in DiFrancesco's letter, on their face, included the phrase "since Smith last had the ability to practice medicine." To determine if these words are defamatory per se, we consider their "natural and obvious meanings," Smith v. Stewart , 291 Ga. App. 86, 97 (2) (b), 660 S.E.2d 822 (2008), and "look[ ] to the plain import of the words." (Citation and punctuation omitted.) Bellemead, LLC v. Stoker , 280 Ga. 635, 637, 631 S.E.2d 693 (2006). The "ability to practice medicine," in its normal and obvious meaning, indicates that Smith has lost his license or no longer has the physical or mental capacity to practice medicine.² This interpretation requires no innuendo because either meaning is injurious to Smith's reputation in his profession. See Cottrell , supra, 299 Ga. at 524 (II) (A), 788 S.E.2d 772 ; Bellemead , supra, 280 Ga. at 637, 631 S.E.2d 693 ; see also Ultima Real Estate Invest ments, LLC v. Saddler , 237 Ga. App. 635, 636 (1), 516 S.E.2d 360 (1999) (statements that plaintiff "did not know what he was doing" in his business dealings were actionable as slander).

DiFrancesco argues that the challenged statement refers to Smith's ability to practice with Cenegenics , but nothing in the words themselves would reasonably lead a reader to that interpretation. The average reader viewing the entire letter would not understand it to mean that Smith was still licensed to practice medicine but simply no longer able to practice with Cenegenics . See Lucas v. Cranshaw , 289 Ga. App. 510, 513 (1), 659 S.E.2d 612 (2008) (instructing courts to look at a writing as the average reader to whom it is addressed would). Any reader would naturally conclude that Smith could no longer practice medicine. We thus cannot adopt DiFrancesco's "strained construction" that the statement on its face referred only to Smith's involvement with Cenegenics rather than his ability to practice medicine generally. See Zarach , supra, 231 Ga. App. at 688 (2), 500 S.E.2d 1. Accordingly, the trial court erred in finding that the statement was not defamatory per se.

2. Smith next argues that the trial court erred in finding that the statement was privileged as a matter of law. Again, we agree.

The trial court found that DiFrancesco was entitled to summary judgment on the alternate ground that the challenged statement was privileged. See OCGA § 51-5-7 ; Smith , supra, 291 Ga. App. at 91 (1), 660 S.E.2d 822 (setting out elements of defamation to include unprivileged communication).

A defendant who has made a statement that is...