Doctor Asserts Slander Claims Over Accusation of Negligence During Surgery – Tunca v. Painter

An Illinois appellate court reversed a circuit court order dismissing a doctor’s lawsuit for slander per quod against two colleagues. Tunca v. Painter, et al, 965 N.E.2d 1237 (Ill. App. 2012). Two doctors who worked at the same hospital as the plaintiff alleged that the plaintiff was negligent during a surgery, resulting in injury to the patient. The plaintiff alleged that their statements were defamatory, causing damage to his professional reputation and a decline in patient referrals. After the circuit court dismissed multiple claims of slander per se and per quod, the plaintiff appealed. The appellate court held that the defendants’ statements were slanderous on their face, and ruled in the plaintiff’s favor.

The plaintiff, Dr. Josh Tunca, is a surgeon specializing in gynecological oncology. Defendant Dr. Thomas Painter is a vascular surgeon who worked at the same hospital. Defendant Dr. Daniel Conway was chairman at the time of the hospital’s quality review committee. After Dr. Tunca performed surgery to remove an ovarian tumor in June 2006, a severe blood clot formed in the patient’s femoral artery. Dr. Painter performed a femoral-femoral bypass, correcting the condition. Id. at 1241. Dr. Painter allegedly told the hospital’s vice president and medical affairs director that Dr. Tunca had “inadvertently cut the [patient’s] left iliac artery,” and made similar statements to other doctors. Id. at 1241-42. Dr. Conway allegedly spoke to Dr. Tunca, in the presence of other doctors, “regarding his allegedly cutting the [patient’s] artery.” Id. at 1242.

Dr. Tunca filed suit against Drs. Painter and Conway in July 2007, alleging slander per se against both defendants. This is a claim that the statements in question are unambiguously defamatory. He claimed that their statements, made in the presence of others, were “false, malicious, slanderous, and…inten[ded] to injure plaintiff’s good name and credit in his profession.” Id. After several dismissals of his slander claims, the plaintiff filed a third amended petition alleging slander per quod against both defendants, adding allegations that the defendants’ statements had been “disseminated throughout the hospital,” affecting his ability to treat patients and his ability to get new patients. Id. at 1245. After the Cook County Circuit Court dismissed these claims, the plaintiff appealed.

The appellate court dismissed the plaintiff’s appeal regarding the slander per se claims on procedural grounds. Id. at 1252. The court reviewed the circumstances that would support a slander per quod claim: when defamation is not “apparent on its face,” requiring proof of “extrinsic facts” by the plaintiff; or when the statement is plainly defamatory, but does not fall within the limited categories of slander per se under Illinois law. Id. The plaintiff had alleged that the defendants’ statements fit within both categories of slander per se: words that impugn a person’s ability or integrity in their job, or words that “impute a lack of ability” in their profession. Id. The circuit court held that they were non-actionable statements of opinion.

The appellate court held that the defendants’ statements were defamatory on their face, because they “had the clear meaning that he committed professional malpractice.” Id. at 1256-57. It noted that even if the plaintiff could not bring claims for slander per se, he could still support a claim of slander per quod, specifically a statement that is defamatory on its face, but not one of the specific types of slander per se. It also held that he met the legal requirement to plead special damages by showing that at least one of the doctors who commonly referred patients to the plaintiff stopped doing so after hearing Dr. Painter’s statements. Id. at 1263.

Lubin Austermuehle’s slander and libel attorneys represent businesses and consumers in defamation lawsuits throughout the greater Chicago area and Mid-West regions, including Illinois, Indiana, Iowa, and Wisconsin. To schedule a confidential consultation with a member of our team, please contact us today online, at (630) 333-0333.

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