Sparagon v. Native American Publishers, Inc.
| Decision Date | 10 January 1996 |
| Docket Number | No. 18897,18897 |
| Citation | 1996 SD 3,542 N.W.2d 125 |
| Parties | Judd A. SPARAGON, Plaintiff and Appellant, v. NATIVE AMERICAN PUBLISHERS, INC., Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Mitchell C. LaFleur of LaFleur, LaFleur & LaFleur, Rapid City, for plaintiff and appellant.
Kenneth R. Dewell of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for defendant and appellee.
¶1 Judd A. Sparagon appeals from the granting of summary judgment in favor of Native American Publishers, Inc. We affirm, in part, reverse and remand, in part, and vacate and remand, in part.
¶2 Hobart Lee (Lee), age 71, a diabetic and an Indian residing on the Pine Ridge Indian Reservation (Pine Ridge) lost his leg by amputation. The amputation started the chain of events leading to this suit.
¶3 The Lakota Times (now known as Indian Country Today), a newspaper of general circulation that concentrates on issues relating to Indians, published an article concerning Lee's loss of his leg. In the article, Lee stated that Dr. Judd Sparagon (Sparagon) removed Lee's toenails causing them to bleed. Infection set in and amputation became necessary. The article was not true in many respects.
¶4 Sparagon demanded that Native American Publishers, Inc. (N.A.P.), publisher of the newspaper, retract the article. N.A.P. refused and Sparagon sued for defamation. Discovery followed and N.A.P. moved for summary judgment.
¶5 In the summary judgment motion, N.A.P. claimed a qualified privilege because a common interest in podiatric care existed and Sparagon could not show malice. The trial court held Sparagon was not a public official or figure, a common interest privilege existed, and Sparagon failed to meet his burden to show that N.A.P. published the article with malice. The court granted N.A.P. summary judgment. Sparagon appeals.
¶6 On April 8, 1992, N.A.P.'s newspaper published an article, "Toenail Removal Costs Pine Ridge Man His Leg," written by its reporter, Pamela Stillman (Stillman). The article referred to Sparagon, the chief of podiatry at the United States Veterans Administration Medical Center in Hot Springs, South Dakota (VA Center). The VA Center has an agreement with the United States Indian Health Services (IHS) on Pine Ridge to provide treatment to the reservation Indian population at the Pine Ridge Clinic (Clinic).
¶7 One week before publication of the article, Stillman contacted Delores Bruce (Bruce), the public affairs representative for the VA Center, telling Bruce she wanted information about Sparagon. Bruce informed Stillman that Lee was treated at Clinic and that generally diabetics' extremities are at extreme risk. Bruce furnished Stillman a news release in which Sparagon stated: Stillman requested further information, but Bruce stated she would release no further information without Lee's signed consent. Stillman stated she attempted to get a consent through Lee's attorney, Patrick Lee; however, she did not get such consent.
¶8 The newspaper article stated Sparagon knew that patient Hobart Lee had diabetes and removed, at the Clinic, Lee's toenails of both big toes in December 1991, eventually causing the amputation of Lee's left leg. The amputation occurred on January 22, 1992.
¶9 The true facts, however, were that Lee only had one toenail trimmed, not removed, and Sparagon did not perform the procedure. Lee incorrectly identified Sparagon as the attending physician and further incorrectly described the medical procedure to Stillman. The following is the article:
Toenail removal costs Pine Ridge man his leg
By Pamela Stillman
RAPID CITY----When Hobart Lee, 71, of Pine Ridge had two ingrown toenails removed in December at the Pine Ridge Hospital, he never thought it would lead to the amputation of his left leg.
The leg was amputated Jan. 22 at Rapid City Regional Hospital, because of the toenail removal procedure, Mr. Lee said. He has retained an attorney to bring suit against the podiatrist who removed the toenails, Dr. Judd A. Sparagon.
Dr. Sparagon knew he was a diabetic, Mr. Lee said, but removed the toenails on each of his big toes by cutting them out which produced bleeding.
Both toes became infected, but the infection in the left foot spread, causing poor circulation in the leg and it had to be amputated below the knee, Mr. Lee said. His right foot also is infected, and he fears he may loose [sic] that leg too.
Dr. Sparagon regularly travels from the Veteran's Affairs Medical Center in Hot Springs to the podiatric clinic at the Pine Ridge Reservation Hospital, which he developed in 1989. Because of patient confidentiality he is unable to talk about Mr. Lee's case without a release from the patient. He said that Mr. Lee was examined and treated appropriately in outpatient clinics conducted in Pine Ridge through sharing agreements with Public Health Service.
(Mr. Lee's attorney advised against signing a release for Dr. Sparagon at this time.)
Dr. Sparagon is from New York and has worked for the Hot Springs VA hospital since 1982. In 1989, the doctor became one of fewer than 50 podiatrists board certified in public health.
Mr. Lee believes that there might have been a better way to remove the toenails.
he said.
In a recent article written for a national VA publication, Dr. Sparagon talked about the seriousness of diabetes on the reservation.
Asked what motivates him to keep going back, week after week, he grows very serious and tells you about the high incidence of diabetes on the reservation with the accompanying foot problems. the article said.
Mr. Lee is concerned that he is not the only one to have had an amputation because of the toenail removal process used, and he wants others to be aware of complications which could arise from this type of procedure.
"There are a lot of diabetics that I heard about this happening to, but they may not say anything."
Mr. Lee does not know what would have happened if he had not had the toenails removed.
Mr. Lee's physician at the Pine Ridge Hospital, Dr. Allen Dobbs, said he knows about Mr. Lee's case, but cannot talk about it because of patient confidentiality. He did say that diabetic patients can be at extreme risk with extremities, no matter what is done.
Dr. Dobbs said.
Mr. Lee is in a local nursing home while his therapy continues.
¶10 After publication on April 10, 1992, Sparagon demanded, by letter to Stillman, that N.A.P. retract the article. On April 14, 1992, N.A.P., through its owner Tim Giago (Giago), stated it would correct the false statements, but requested Sparagon to specify which parts were incorrect and why they were incorrect.
¶11 Sparagon replied to Giago on April 27, 1995. Sparagon stated that the following statements were untrue: (1) the title; (2) the statement that Lee retained a lawyer to sue Sparagon who had removed Lee's toenails; (3) the statement that Sparagon knew Lee had diabetes and removed Lee's toenail causing bleeding; (4) the procedure caused infection of Lee's left foot, and the infection spread causing poor circulation; and (5) the statement that Sparagon believed that he treated and examined Lee approximately at the Clinic. Sparagon did not state why the statements were untrue, and never told N.A.P. he was not the treating physician.
¶12 N.A.P.s publication published another article about Sparagon's request for retraction; however, it did not retract. Sparagon filed suit against N.A.P. claiming defamation. Sparagon claimed that the article was defamatory because it suggested he did something wrong by removing Lee's toenail that caused the leg to be amputated.
¶13 N.A.P. investigated the Lee case after Sparagon sued. The investigation showed that Stillman, when preparing the article, interviewed Lee who told her that Sparagon removed his toenail and it became infected causing the amputation. Lee also stated that other persons had a similar problem.
¶14 During discovery, Patrick Lee testified Stillman did not request consent to talk with Lee's physicians, and if he was asked, he would not have recommended consent. Patrick Lee stated neither he nor Lee, his uncle, was told the nail removal caused the amputation, but he told Stillman that Lee was holding Sparagon liable for his condition. Patrick Lee did not want Stillman to publish the article since Patrick Lee did not want to try his case in the newspapers. Patrick Lee later amended Lee's claim against the federal government to remove the allegation that Sparagon was the attending physician.
¶15 In order to decide this appeal we must analyze the substantive and procedural rules respecting a libel claim.
¶16 Libel cases have many pitfalls for the trial judge and practitioner. Over the course of years, the legislature and the courts have grafted unique procedural and substantive rules onto libel law. These rules substantially affect the prosecution of a libel case, particularly against a newspaper.
¶17 SDCL 20-11-7 relates to a request for retraction. Before a plaintiff may bring a libel action against a newspaper or the publisher, editor or manager, the plaintiff:
[M]ust at least...
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