Arizona Court of Appeals Division One holds that calling a doctor an “idiot” for missing an “obvious” diagnosis does not support a defamation claim, and that Arizona’s statute protecting the confidentiality of hospital peer-review proceedings does not require production of a privilege log.

A medical doctor sued members of a hospital peer-review executive team that restricted his practice and revoked his clinical privileges for allegedly defamatory statements, including a statement that the doctor was an “idiot” who allegedly missed an “obvious” diagnosis.  In response to the doctor’s discovery requests, the executive team invoked the peer-review privilege found in A.R.S. § 36-445.01 and declined to produce requested documents or a privilege log.  After discovery, during summary judgment briefing, the doctor produced two affidavits from other doctors who allegedly overheard defamatory statements.  The trial court struck the two affidavits as untimely and granted summary judgment to the executive team.

The Court of Appeals affirmed.  The Court of Appeals held the members of the executive team were not required to produce any peer-review materials or a privilege log under A.R.S. § 36-445.01.  In addition to the materials themselves, the overriding public interest expressed in the statute protects from disclosure a privilege log which would reveal which peer-review witnesses and executive committee members communicated with the hospital’s legal counsel about the peer-review process.

In addition, the statement that the doctor was an “idiot” who administered a certain treatment despite an “obvious” medical condition, could not support a defamation claim as a matter of law.  Statements of opinion or subjective belief are actionable only if they may be proven false.  A statement is not actionable if it does not present the kind of empirical question a fact-finder can resolve.  Both the statement that the doctor was an “idiot” and that the diagnosis was “obvious” were statements of opinion not susceptible to being provably true or false.  Accordingly, the Court of Appeals affirmed summary judgment dismissing the defamation claims based on those statements.

Judge Campbell authored the opinion in which Judges Williams and Morse joined.