Luckey v. Gioia

¶1dissenting.

¶2Because the majority’s holding stretches precepts underlying Georgia’s “invited libel” doctrine and thereby avoids application of rules governing this State’s qualified immunity doctrine, I am compelled to dissent.

¶3I cannot go along with the majority’s logic that Dr. Gioia’s harsh views and accusations against Nurse Luckey were not legally “published” because the doctor directed them to a Hospital administrator. The majority’s holding is founded on cases which invoke “public policy” to justify the rule that defamatory comments are not actionable when rendered during an employer’s investigation of an employee’s job performance. See Fly v. Kroger Co., 209 Ga. App. 75, 76 (1) (432 SE2d 664); Lepard v. Robb, 201 Ga. App. 41, 42 (1) (410 SE2d 160); Kenney v. Gilmore, 195 Ga. App. 407, 408 (1) (393 SE2d 472); Williams v. Cook, 192 Ga. App. 811 (1) (386 SE2d 665); Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878); Monahan v. Sims, 163 Ga. App. 354, 357 (1) (294 SE2d 548), and LuAllen v. Home Mission Bd. &c., 125 Ga. App. 456, 459 (2) (188 SE2d 138).4 The problem I see in applying this rule in the case sub judice is that the Hospital was not investigating Luckey’s job performance when its administrator asked Gioia to respond to the nurse’s report that the doctor had “dumped” a *435pregnant and medically unstable 15-year-old emergency room patient.5 The Hospital’s investigation focused only on Gioia’s alleged violation of hospital policy and federal law — The Emergency Medical Treatment & Active Labor Act, 42 USC § 1395dd. Punishing Luckey for reporting what she believed was a violation of these standards by cutting off her right for a jury to hear her defamation claim is, in my view, not good “public policy.” On the contrary, such policy undermines the intent and purpose of 42 USC § 1395dd.

¶4I believe that Georgia’s “public policy” is best served, under the circumstances in the case sub judice, by allowing a jury to resolve the parties’ opposing claims. Specifically, Gioia’s defense should not be governed by the maxim, “Volenti non fit injuria,” but should be measured under appropriate rules governing Georgia’s qualified immunity doctrine — which requires proof that Gioia uttered his harsh words against Luckey in good faith and with an interest to be upheld; that the doctor’s statements were properly limited in scope; that the doctor uttered the words during a proper occasion, and that he published them only to proper persons. See Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822 (67 SE2d 600). Applying this test in the case sub judice, I find the content, tone and potential self-serving motive behind Gioia’s letter against Luckey sufficient to raise genuine issues of material fact as to whether the doctor acted maliciously in transmitting the letter to the Hospital’s administrator. I believe that saying otherwise chills any incentive for hospital employees to report infractions under federal law and private policies that are designed to protect helpless (and possibly disadvantaged) emergency room patients.

¶5Moreover, I am in full agreement with and concur fully with Judge Eldridge’s dissent.

¶8dissenting.

¶9I respectfully dissent.

¶10While I fully concur with Presiding Judge McMurray’s dissent, I am compelled to point out some critical facts that have been mischaracterized in error.

¶11Dr. Gioia’s letter was not written in response to a personnel investigation of Nurse Luckey, because he was not her supervisor, but she at most was his temporary borrowed servant; the investigation by the hospital administrator was in response to serious charges that the hospital had violated federal law in dumping a patient and could be exposed to liability to the patient and to the federal govern*436ment and that he might be responsible as the independent contractor. The hospital administrator first became aware of the charge of dumping through complaints from the outraged staff of St. Joseph Hospital, upon whom the patient had been dumped. The hospital administrator looked at the patient’s records to find out what had occurred at the McDuffie County Hospital and found Luckey’s notes placing the responsibility on Gioia. Thus, at the time the hospital administrator requested a written explanation of Gioia, it was the acts or omissions of Gioia that were in question in regard to the dumping and not a personnel investigation of Luckey.

¶12Gioia’s letter was to cover his own acts or omissions by shifting the blame to his accuser, Luckey. If the facts and allegations are not true in the letter, then the contents attacked Luckey professionally and constituted libel per se. Thus, Gioia sought to shift the blame and instigated the inquiry into the fitness of Luckey. The inquiry as to the personnel matter was not instituted by the hospital administrator and was not a personnel inquiry until a later date. Thus, Gioia’s letter to the hospital administrator was a publication, was intentional, and exhibited actual malice, because the letter sought outside of any qualified privilege to blame her in order to exonerate Gioia, which would not be privileged if false. Gioia was neither an agent nor an employee of the hospital when he wrote the letter to the hospital administrator so that he cannot claim non-publication as a communication within the corporation, because he was a third person to the hospital and Luckey. When he went beyond the defense of his own action and sought to blame and to question the professional skill of the plaintiff, any conditional privilege was exceeded, and malice negated the privilege as well. Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 258 (1) (345 SE2d 924) (1986). This decision does not stand for the legal proposition that an independent contractor cannot make a publication when written matter is sent to the employer. Under OCGA § 51-2-4, the torts of an independent contractor cannot be imputed to the employer; likewise, the communication of an independent contractor is not the same as an agent, servant, or employee, because the legal relationship is not the same. The lawyer for the condo association at the direction of the officers of the association wrote a complaint letter to the lessor about the plaintiff-lessee’s conduct, which affected both the association members as well as the lessor; the lawyer was acting as the agent of the association so that his acts were the acts of the association.

¶13In this case, the independent contractor was not acting either as employee or agent of the hospital but was acting in his own behalf. In defense of himself and to shift blame, Gioia accused plaintiff of the conduct that he was charged by her with doing himself. This was not a qualified privileged matter under OCGA § 51-5-7 (3) as in Carter. *437Where there is actual malice, there is no conditional privilege. Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414) (1943). Wilful falsehood negates any good faith privilege. Holmes v. Clisby, 121 Ga. 241 (48 SE 934) (1904). Thus, there exists a factual question as to the existence of the conditional privilege.

¶14I am authorized to state that Presiding Judge McMurray concurs fully with this dissent.