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$3 million libel verdict over disputed surgery advice upheld

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  1. Libel and Privacy

    NMU         DELAWARE         Libel         May 12, 2000    

$3 million libel verdict over disputed surgery advice upheld

  • The state high court found that questions of whether allegations made were facts or opinion were properly left to a jury, but a dissenting judge thought the case should have been dismissed before trial.

The state Supreme Court upheld an almost $3 million jury verdict against The (Wilmington) News Journal on May 3, finding that the determination of liability was supported by the facts presented to the jury.

However, the court ruled that the $2.6 million in actual damages awarded to a doctor were based on expert testimony “that lacked an admissible foundation,” while the jury was unfairly restricted by the judge’s decision that they could not consider the wealth of Gannett, the newspaper’s parent company, in determining punitive damages.

The case arose out of a News Journal article that recounted the medical crisis that faced Pamela Kane, a woman whose doctor had recommended in April 1992 that she undergo a hysterectomy to remove a fibroid tumor “sitting in her cervix.” The doctor, Margo Kanaga, also recommended that Kane seek a second opinion before agreeing to the operation. But during an emergency room visit a few weeks later prompted by heavy bleeding experienced by Kane, a doctor was able to remove the tumor with forceps, avoiding the need for a hysterectomy or any invasive surgery. Kane filed a complaint with the county medical society, and approached a health reporter with the News Journal about doing a story on what she considered a doctor’s recommendation of unnecessary surgery for financial gain.

The News Journal decided to run a story without waiting for a decision by the medical society. Under the headline “Patient feels betrayed: says proposed hysterectomy wasn’t needed,” the article reported that Kane’s complaint accused Kanaga of committing “a serious breach of the standard of care a patient has the right to expect.” Kanaga declined to discuss the case with the newspaper.

The medical society cleared Kanaga of any wrongdoing eight weeks later, finding that a hysterectomy was “one of several appropriate therapies” for Kane’s condition.

In upholding the jury verdict, the Supreme Court rejected Gannett’s argument that the claim was based on statements of opinion based on true facts, which cannot support a libel verdict. The court held that the issue of whether the article was fact or opinion was a question that had to be answered by a jury.

“Taken as a whole, the article conveys the impression that Dr. Kanaga recommended unnecessary surgery for financial gain. The reporting of Kane’s complaint to the Medical Society was prefaced by a headline depicting the patient as feeling betrayed by her physician — an obvious violation of the duty owed by a physician to a patient,” the court held.

The court also noted that Kane’s use of the term “incredulously” to describe the emergency room doctor’s view of Kanaga’s actions were disputed by the emergency room doctor, and that medical records attached to Kane’s complaint, which the reporter possessed prior to the publication of the article, “differed in several key respects from Kane’s complaint.”

In a surprising decision to step into the role of editor, the court also decided that a reasonable jury could conclude that publishing the article without waiting for a decision by the medical board “evidenced journalistic irresponsibility.” The court noted that the story “did not involve a plane crash or other immediate news event,” yet the newspaper chose to present a “highly charged, biased, one-sided version of events.”

The court rejected Gannett’s argument that the article was a “fair report” of an official proceeding because of the complaint filed with the medical board. The court found that the issue had already been decided four years earlier when Kanaga had appealed the dismissal of the case before trial, which the Supreme Court then reversed. But it repeated its finding that the fair report privilege did not apply because the jury found that statements in the newspaper article were factual in nature and their substance was false. “The article’s falsity takes it out of the realm of such protection,” the court held.

One judge dissented, finding that the court’s decision will have a “chilling effect” on free speech. Noting that the disputed comments represented Kane’s opinions based on disclosed facts, Judge William Chandler said that “a libel action cannot lie against a speaker for expressing an opinion that does not imply false, defamatory facts.”

(Gannett Co. v. Kanaga; Media Counsel: Robert Bernius, Washington, D.C.)

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