Advanced Cardiac Specialists et al. v. Tri-City Cardiology et al (8/25/2009)

August 26, 2009

Arizona Court of Appeals Division One Holds That A.R.S. § 32-1451(A) Abrogates Common Law Immunity For Reports Involving Medical Malfeasance And Affirms Dismissal of Defamation Action Brought Against Physician Who Reported Other Physicians to the Arizona Medical Board.

Dr. Kaplan filed a complaint to the Arizona Medical Board (AMB) alleging that Doctors Siegal and Garg engaged in unprofessional conduct.  In response to the complaint to the AMB, the respondent-doctors brought an action against Dr. Kaplan for, inter alia, defamation and false light invasion of privacy.  Dr. Kaplan moved for summary judgment, arguing that under A.R.S. § 32-1451(A), he could not be sued for matters reported to the AMB in good faith and that his complaint to the AMB was absolutely privileged under the common law.  The superior court granted the motion.

On de novo review, Division One affirmed.  The court noted that at common law “there [was] an absolute privilege for reports involving professional misconduct in quasi-judicial proceedings.”  A.R.S. § 32-1451(A) abrogated the common law privilege in the context of reports involving medical malfeasance.  The statute creates instead a qualified privilege: “Any person or entity that reports or provides information to the board in good faith is not subject to an action for civil damages . . . .” (emphasis added).  Rejecting one of the Plaintiffs’ arguments, the Court found that the phrase “any person” simply “could not be reduced to any clearer expression” and would include Dr. Kaplan.

Second, Division One found that none of the evidence supplied by Plaintiffs demonstrated that Dr. Kaplan did not make the report in good faith so as to lose the qualified privilege.  To meet this burden, Plaintiffs would have had to produce “clear and convincing evidence that Dr. Kaplan abused the privilege,” i.e. by proving publication with “actual malice or by demonstrating “excessive publication.”  Defendants did not produce such evidence; rather, their arguments were premised “on the notion that Dr. Kaplan was required to use reasonable care to investigate the substance of his statements before making them to the AMB.”  But this negligence standard, the court  noted, in inappropriate when a privilege applies. 

Finally, the Court found that the trial court did not err in denying Plaintiffs’ Rule 56(f) request for an additional deposition.  The deposition, while it could have pointed to “additional steps Dr. Kaplan could have taken to investigate the truth of [his statements to the AMB] . . . would not have demonstrated that he abused the privilege.”  Thus, it would not have produced evidence that would raise a “genuine issue of material fact.” 

Judge Swann authored the opinion, with Judge Orozco, Presiding Judge, and Judge Irvine concurring.