Woods v. Helmi

• Decision Date: 24 May 1988
• Citation: 758 S.W.2d 219
• Parties: Andy WOODS, Plaintiff/Appellant, v. Hesham HELMI, M.D.A., Jorge Chaumont, M.D.A., Defendants, and Michael Stephen Dunlap, C.R.N.A., Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 219

758 S.W.2d 219

Andy WOODS, Plaintiff/Appellant, v. Hesham HELMI, M.D.A., Jorge Chaumont, M.D.A., Defendants and Michael Stephen Dunlap, C.R.N.A., Defendant/Appellee.

Court of Appeals of Tennessee Western Section, at Jackson.

May 24, 1988.

Application for Permission to Appeal

Denied by Supreme Court,

Aug. 22, 1988.

David A. Siegel, Memphis, for plaintiff/appellant.

David P. Jaqua, S. Russell Headrick and Teresa J. Sigmon, Armstrong, Allen, Prewitt, Gentry, Johnston & Holmes, Memphis, for defendant/appellee Dunlap.

TOMLIN, Presiding Judge (Western Section).

Ms. Andy Woods (hereafter "plaintiff") brought suit in the Circuit Court of Shelby County against Michael Stephen Dunlap (hereafter "defendant" or "Dunlap") and others, seeking damages for alleged defamation of character by libel and wrongful interference with employment and/or contract. The trial court granted defendants' motion for summary judgment, holding that for the purposes of both claims by plaintiff no publication had occurred. This order was made final pursuant to Rule 54.02, T.R.C.P. The issue presented by this appeal is whether the trial court erred in granting summary judgment concerning both claims. We agree with the trial court and affirm.

At all times pertinent to the incident sued upon plaintiff was employed at the Regional Medical Center in Memphis, hereafter referred to as "The Med," as a Certified Registered Nurse Anesthetist ("C.R.N.A."). The Med, formerly known as the City of Memphis Hospital, was operated by the Shelby County Health Care Corporation (hereafter "S.C.H.C.C."), a private not-for-profit corporation. As a term and condition of this lease S.C.H.C.C. entered into a contract with the University of Tennessee ("U.T.") and the Faculty Medical Practice Corporation ("F.M.P.C.") whereby U.T. would continue graduate medical and dental education at The Med. U.T. agreed to provide The Med with a house staff of medical and dental interns and residents. U.T. also agreed to provide medical and dental faculty to instruct and supervise the interns and residents and to perform other medical-administrative services. F.M.P.C. agreed to provide the necessary attending, consultative and other direct physician services for all patients of The Med that required such services. Both U.T. and FMPC were compensated in accordance with schedules contained in the contract. In May, 1985, a new entity known as the University Physicians Foundation, Inc. (herein "U.P.F.") became the successor corporation to F.M.P.C Plaintiff's immediate superior was Dunlap, who held the title of Lead Clinical C.R.N.A. In the chain of command Dunlap reported to Robert Boyles, Vice President of Professional Services at The Med. Both defendant Dunlap and Boyles were employees of The Med.

At all times pertinent to the incident in question Dr. Rajkumar Stephens was the Acting Director of the Anesthesia Department at The Med. His superior was Dr. John Angel, Chairman of the University of Tennessee Department of Anesthesiology, who appointed Dr. Stephens to his post at The Med. Both Stephens and Angel were members of U.P.F.

The job description of a C.R.N.A. employed at The Med under the Department of Anesthesiology read in part as follows:

The privileges of personnel in this position must be approved by the Credentials Committee of the Medical Staff after approval by the Director of Anesthesiology, THE MED, and the Chairman of the Department of Anesthesiology.

The Certified Registered Nurse Anesthetist's (CRNA) performance shall be under to [sic] overall direction of the Director of Anesthesia Services or his qualified anesthetist designee.

Prior to the incident that led to the dismissal of plaintiff, she had occasion to work in the operating room with the other two defendants in the original suit, Drs. Helmi and Chaumont, both staff anesthesiologists at The Med. As a result of an incident involving a patient that occurred in July, 1985, Drs. Helmi and Chaumont submitted reports to Dr. Stephens, with copies to Drs. Angel and Dunlap. As a result, plaintiff was suspended without pay for four days and placed on six-months probation. The probation letter was written by Boyles.

As a result of an incident that occurred on November 27, 1985, Dr. Helmi sent another report to Dr. Stephens, with copies to Dr. Angel and defendant Dunlap.

Boyle's affidavit stated that following the November 27, 1985 incident, he discussed plaintiff's performance with her superior, Dunlap. He was instructed by Boyles to prepare a clinical evaluation of plaintiff's conduct based upon the assumption that the facts in Helmi's report were true. Boyles stated that this clinical evaluation by defendant was requested pursuant to the policies and procedures then in effect in the Department of Anesthesia at The Med. Dunlap submitted the evaluation on December 11, 1985. The original memorandum was sent to Boyles, with copies to Drs. Stephens and Angel as well as to Mitch Spurlock, the Director of Employee Relations at The Med. In defendant's memorandum to Boyles he critiqued plaintiff's conduct and concluded that there were two violations represented therein that were inconsistent with The Med's anesthesia policy procedure. Plaintiff was terminated at The Med some eight days later. Defendant Dunlap's report was written on Med letterhead, with the legend "Regional Medical Center at Memphis" printed at the bottom of the page.

Dr. Helmi's report to Dr. Stephens reported that plaintiff had administered insulin to a patient without consultation and without subsequent glucose administration. Helmi's report further stated that plaintiff had failed to record the patient's vital signs for a period of fifteen minutes.

I. THE LIBEL CLAIM.

In granting summary judgment on this issue, the trial court stated in part as follows:

Specifically, the court is of the opinion that there was no publication of the allegedly defamatory information. The record reveals that defendant Dunlap was Lead CRNA in the anesthesiology department at The Regional Medical Center at Memphis ("The Med"), and his allegedly defamatory memorandum concerned plaintiff's performance as a CRNA at The Med. Recipients of the communication were Mr. Boyles, an assistant vice-president at The Med with managerial oversight of this department; Mr. Spurlock, The Med's Director of Employee Relations; Dr. Raj Stephens, Acting Director of The Med's Department of Anesthesiology and a member of the University of Tennessee Department of Anesthesiology; and Dr. John Angel, Chairman of the University of Tennessee Department of Anesthesiology which staffed and operated The Med's anesthesiology department and one of the persons to whom Dr. Stephens was responsible. All of these persons had managerial, supervisory or administrative responsibilities and oversight for these internal affairs of The Med's anesthesiology department and were immediately interested in the information transmitted. The court concludes that the basic principle of Freeman v. Dayton Scale, 19 S.W.2d 255 (Tenn.1929), and its progeny relied upon by Dunlap applies to this case, and the fact that the physician recipients of the information were also faculty members or employed by the University of Tennessee and/or University Physicians Foundation is of no legal consequence.

For similar reasons, the court finds that the motion should be granted on the count for interference with plaintiff's business advantage or contract of employment.

Plaintiff admits that defendant was her immediate superior at The Med. She likewise concedes that all those who received the memo were in the chain of command and were entitled to receive it. This concession was made by plaintiff's counsel as well:

MR. SIEGEL: Your Honor, I would simply say that I know of no decision in this state, that has held that a publication does not occur when dealing with officers and agents of separate corporations, which is what we have in this case.

THE COURT: Counselor, wasn't it necessary for these people to see this, concerning the qualifications and ability of this individual? Aren't they the very people that had to receive this communication.

MR. SIEGEL: Yes, sir. That is correct. However, in the case of Southern Ice versus Black, that issue was addressed, and the court said that there was--there was no publication other than to those immediately interested in the transaction. What I'm saying, Your Honor, is that the Tennessee courts have not gone as far as to hold no publication simply because the two parties are interested in the transaction or, for that matter, even have a duty in the transaction.

The fact of the matter is Ms. Dunavan [sic] cited in her affidavit which was filed last week a contract between the Shelby County Health Care Corporation of the University of Tennessee and the Faculty Medical Practice Corporation. Now, her affidavit neglected to mention a contract amendment which also exists, which I have provided pursuant no [sic] my affidavit, which I feel highlights the fact that the Shelby County Health Care Corporation of the University of Tennessee and UPF are, in fact, separate entities. If I might cite section seven of the original contract.

THE COURT: But, Counselor, are we debating semantics? I mean, this communication according to this file went to the very people who it was required to go to concerning the qualifications of any doctor or CRNA or nurse or anyone else who was performing services out there at that hospital and taking care of patients. Whether the communication is right or wrong, this communication went to the very people that that was required to go to; was it not?

MR. SIEGEL: Your Honor, there is no doubt about that. I don't even dispute that.

Plaintiff contends that the trial court mistakenly confused the concept of "no publication" with that of "privilege." We respectfully disagree with this contention. While it is true that a split of authority exists among the various...