This case is about whether an alleged defamation was privileged. Although based on a particular statute, it has some language and guidance useful in similar cases.

Tri-City’s Dr. Kaplan wrote to the Arizona Medical Board alleging that Arizona Cardiac doctors were implanting stolen pacemakers and ones they bought on eBay. Arizona Cardiac sued for defamation.

A statute (32-1451A) requires doctors to report things to the Board, similar to the way we have to report things to the Bar. The statute creates a privilege for doing so. The first issue was whether the privilege is absolute or conditional. Arizona Cardiac argued, based on a fairly technical reading of certain changes to the statutory language over time, that it was absolute for those required to report to the Board (i.e., doctors) and qualified for others providing information to it. The opinion holds that it is qualified even for doctors – a privilege applies, according to the statute, if the information is provided “in good faith.”

The question then became whether there was evidence that Kaplan had abused the privilege. This happens, said the court, when there is actual malice or excessive publication. One would have thought that it happens, under the terms of this statute, when the actor did not act in good faith. But the court cited cases about other privileges and said that a qualified privilege is abused when there is actual malice or excessive publication.

Arizona Cardiac argued that Kaplan didn’t do enough to check on the truth of the information he reported. The court said that the burden was on Arizona Cardiac, not Kaplan, and that the issue is not whether Kaplan did enough to check but whether he “actually entertained serious doubt” about the truth of what he reported. (The latter part is a bit hard to follow since there is some sort of typo in paragraph 14.) Negligence is not the standard in the case of a qualified privilege, the standard is actual malice or excessive publication.

The moral, however, is: always ask to see the doctor’s receipt.