Thornton v. Holdenville General Hosp.

• Decision Date: 08 May 2001
• Docket Number: No. 94,878.,94,878.
• Citation: 2001 OK CIV APP 133,36 P.3d 456
• Parties: Janet THORNTON, Plaintiff/Appellant, v. HOLDENVILLE GENERAL HOSPITAL, Melissa McClellan, Christy Marsh, and Joseph Mitchell, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

36 P.3d 456

2001 OK CIV APP 133

Janet THORNTON, Plaintiff/Appellant, v. HOLDENVILLE GENERAL HOSPITAL, Melissa McClellan, Christy Marsh, and Joseph Mitchell, Defendants/Appellees.

No. 94,878.

Court of Civil Appeals of Oklahoma, Division No. 2.

Decided May 8, 2001.

Certiorari Denied October 2, 2001.

Jeff Martin, Tulsa, OK, for Plaintiff/Appellant.

Terry Todd, Leslie C. Weeks, Elizabeth K. Hall, RODOLF & TODD, Tulsa, OK, for Defendants/Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2. COLBERT, Judge:

¶ 1 Plaintiff, Janet Thornton, appeals the district court's summary judgment in favor of Defendants, Holdenville General Hospital (Hospital), Melissa McClellan, Christy Marsh, and Joseph Mitchell.¹ The issue on appeal in this action for defamation and related theories of recovery is whether the district court erred in finding that there was no issue of material fact such that judgment was proper as a matter of law. Upon review of the record and the applicable law, we conclude that the district court did not err and affirm its decision.

¶ 2 Plaintiff, a doctor of osteopathy, was an independent contractor with Gould Group, Inc., a company that specializes in placing physicians with health care facilities. Gould had a contract with Hospital to provide physicians to staff its emergency room. Gould was responsible for assigning the required number of physicians and setting their schedules. Gould regularly assigned Plaintiff to work at Hospital, as well as other area hospitals.

¶ 3 In early 1998, representatives of Hospital and Gould discussed Hospital's concerns about Plaintiff's treatment of patients. These discussions involved Mitchell, Hospital's Chief Executive Officer; McClellan, Hospital's Chief Nursing Officer; Marsh, Hospital's Emergency Room Director; and Ann Klepper, an independent contracting physician with Gould and Medical Director of Hospital's emergency room (but not a Hospital employee).

¶ 4 The discussions centered on the participants' belief that Plaintiff had rendered substandard care to emergency patients and that patients had died as a result. Those involved in these discussions were also concerned about a letter from the Department of Human Services concerning Plaintiff's alleged refusal to accept an emergency referral from a nearby Indian clinic. (The allegations in the letter, if proven true, could have resulted in substantial fines for both Hospital and Plaintiff. Although Plaintiff denied the allegations in the letter, an emergency room nurse remembered the incident and corroborated the Indian clinic's allegations.) Finally, Gould also apparently had concerns about Plaintiff's professionalism and truthfulness.

¶ 5 In March 1998, Hospital informed Gould it no longer wanted Plaintiff scheduled to work at its facility. Plaintiff was not informed of this decision at that time. Although Hospital initially agreed to allow Gould to schedule Plaintiff through March, Hospital, through McClellan, contacted Gould on March 12th and directed Gould to stop scheduling Plaintiff as of that day. Plaintiff was not informed of the decision until she reported for her previously assigned shift on March 16, 1998.

¶ 6 Plaintiff brought this lawsuit seeking damages for the statements made by Defendants in the course of their discussions about her job performance. She based her claim on the theories of (1) interference with a contractual relationship; (2) defamation; (3) intentional or negligent infliction of emotional distress; (4) respondeat superior; (5) breach of contract; and (6) deprivation of property interest without due process. All Defendants moved for summary judgment on several grounds. The district court concluded that Defendants were entitled to judgment as a matter of law.

¶ 7 Plaintiff filed a "Motion to Open, Modify and Vacate Order Granting Defendants Summary Judgment," which we will treat as a motion for new trial.² While that motion was pending, Plaintiff filed a petition in error to appeal from the summary judgment. The district court subsequently denied Plaintiff's motion and she amended her petition in error to reflect that denial.

STANDARD OF REVIEW

¶ 8 "Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926. In reviewing the grant or denial of summary judgment, we must view all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable to the party opposing the motion. Id. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate decision is purely legal: whether one party is entitled to judgment as a matter of law because there are no material disputed facts. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review is de novo. Id.

DISCUSSION

¶ 9 Plaintiff asserts that the district court erred in finding that she had no claim for defamation because the statements about which she complained were not published, and, even if they were published, the statements were privileged. She also asserts that the district court erred in finding that she had no contract with Hospital arising from the by-laws addressing hospital privileges and had no property interest sufficient to give rise to a due process claim. We have thoroughly reviewed the summary judgment record, the arguments of the parties, and the evidentiary materials and conclude that the district court did not err in issuing a summary judgment in favor of all Defendants.

A. Defamation

¶ 10 Plaintiff alleged the following defamatory statements were made by Mitchell, McClellan, and Marsh: (1) Plaintiff was dishonest; (2) Plaintiff provided substandard medical care to four identified patients and patients died in the emergency room because of her failure to provide adequate treatment; (3) Hospital was not satisfied with Plaintiff's performance as a doctor; and (4) Plaintiff may have violated federal law based on her response when a nearby Indian clinic attempted to refer a client to Hospital (as set forth in a letter from the Department of Human Services to Hospital). Plaintiff alleges slander, the verbal form of defamation. The Oklahoma statutes define slander as follows:

Slander is a false and unprivileged publication, other than libel [which is written], which:

1. Charges any person with crime, or with having been indicted, convicted or punished for crime.

* * *

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.

12 O.S.1991 § 1442. In granting summary judgment, the trial court correctly concluded that the statements were not published and were privileged.

1. Publication

¶ 11 Communication inside a corporation, between its officers, employees, and agents, is never a publication for the purposes of actions for defamation. Magnolia Petroleum Co. v. Davidson, 1944 OK 182, ¶ 35, 148 P.2d 468, 471 (explaining that "the statements of [one employee] to [another] could not be considered as a matter of law a publication"); see also Starr v. Pearle Vision, Inc., 54 F.3d 1548 (10th Cir.1995).³ Although it is called an "intra-corporate privilege," this really is a rule that intra-corporate communications those between a corporation's officers, employees, and agents never reach the point of requiring a privilege, because they are never actually published if they never go outside the corporation.

¶ 12 Here, Plaintiff alleged and introduced evidence that Hospital employees made negative statements about her to Gould employees. Defendants argue that, because Gould served as Hospital's agent for the purposes of staffing the emergency room, any communication between Hospital and Gould employees is covered by the absolute privilege. They assert, "Gould . . . hired the doctors, set their work schedule, and made sure that the emergency room at [Hospital] was covered by an emergency room physician at all times."

¶ 13 We agree. An agency relationship arises when one person consents for another person to act on his behalf. Curtis v. CIA Mach., Inc., 1977 OK CIV APP 31, ¶ 9, 571 P.2d 862, 865. For the purposes of the intra-corporate privilege:

Agents and employees of this character are not third persons in their relations to the corporation, within the meaning of the laws pertaining to the publication of libels. For the time being, they are a part and parcel of the corporation itself, so much so, indeed, that their acts within the limits of their employment are the acts of the corporation. For a corporation, therefore, acting through one of its agents or representatives, to send a libelous communication to another of its agents or representatives, cannot be a publication of the libel on the part of the corporation. It is but communicating with itself.

Magnolia, 1944 OK 182, ¶ 31, 148 P.2d at 471 (quoting Prins v. Holland-North Am. Mortgage Co., 107 Wash. 206, 181 P. 680 (Wash. 1919)).

¶ 14 The existence of agency is generally a question of fact and the burden of proving its existence rests on the party asserting it. N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 12, 998 P.2d 592, 598. In this case, however, there is no dispute that Gould was contractually responsible for the physician staffing of Hospital's emergency room. In this context, Gould was Hospital's agent. As a result, any statements made between Hospital's employees and Gould's representatives, at least within that agency relationship, were...