Before Judges Carchman, Lefelt and Lintner.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Camden County.
In Bainhauer v. Manoukian, 215 N.J. Super. 9 (App. Div. 1987), we determined that the conditional special-interest privilege described in Coleman v. Newark Morning Ledger Co., 29 N.J. 357 (1959), applied to the publication of defamatory information by a physician concerning the conduct of another physician. We concluded that the policy implications attendant to the quality of health care in a hospital setting required the application of such privilege to that factual circumstance. This appeal presents the question of whether such privilege applies to a nurse who is defamed in the course of an "intervention" prompted by false allegations that the nurse was improperly diverting and using morphine. We conclude that such privilege does apply under these facts. We further conclude that the confrontation of the nurse in the presence of a secretary did not rise to the level of excessive publication or an abuse of the privilege. Lastly, we conclude that plaintiff failed to establish a sufficient basis to warrant submitting her claim for negligent infliction of emotional distress to the jury. Accordingly, we affirm the trial judge's involuntary dismissal of plaintiff's complaint.
We address the issues raised in the following factual and procedural context. Plaintiff Suzanne Govito served as a registered nurse at defendant West Jersey Health System, Inc.'s (WJHS) intensive care unit, working the 7:00 p.m. to 7:00 a.m. shift four to five shifts per week. On October 11, 1993, an empty morphine tubex (a syringe package containing morphine) was found in the nurses' lounge in the intensive care unit (ICU) of WJHS. Donna Floyd, who was then head nurse, was instructed by her superior, Kathy Pace, the Assistant Director of Nursing, to follow up on the incident by "pulling several months of narcotics sheets." Floyd "didn't know how to follow up" but "flipped through" the sheets not knowing what she was looking for. The sheets contained the sign-outs for morphine, which each nurse was required to sign every time she took morphine from its locked storage box. Floyd discovered that plaintiff's name appeared much more frequently than the other nurses'; in fact, plaintiff accounted for thirty-seven percent of the morphine signed out of the unit.
On November 3, 1993, after plaintiff had worked her regular shift, and had been awake for twenty-four hours, Floyd asked her to proceed to the nursing office. Instead, Floyd led her to a conference room where Pace was waiting with two investigators from the New Jersey State Department of Law and Public Safety. They had the narcotics sheets spread out before them. Plaintiff informed them that she was exhausted and wanted to get some sleep prior to talking to them, but they refused. For the next hour, the investigators asked plaintiff questions about her procedure for signing out morphine, and plaintiff realized that they were accusing her of being a drug user and diverter. Before they were finished, plaintiff told them she was too tired to think straight and left the room.
Plaintiff walked through the hall and saw a group of people gathered together, including Pace, Floyd, Joan Eddy, the Director of Nursing, Kim Russo, the head nurse supervisor in critical care, Denise Yheaulon, a fellow nurse, and defendant Recovery Network's Mari Oresic.
Yheaulon was a nurse at West Jersey who was a recovering alcoholic and drug addict. The night before, someone from Recovery Network had asked her to take part in an "intervention" that was to take place on the morning of November 3. She had taken part in about six prior interventions, although she had no formal training. She was not scheduled to work on November 3 and therefore was not there as a hospital employee. She contacted and asked her sister, Mariann Snyder, who was also a recovering addict, to accompany her to the intervention.
According to plaintiff, Eddy said, "We know you took the drugs. We know you have a problem, and we have help for you." Plaintiff responded with a denial. Eddy repeated her statement and said that they had a room waiting for her at the Parkside Hospital, which was for drug and alcohol rehabilitation. Plaintiff asked Eddy if she was fired, and Eddy answered in the negative. Oresic introduced herself and told plaintiff that she had called plaintiff's husband and "he knew everything." All of this transpired in front of a secretary who, according to plaintiff, was "taking all of this in."
Plaintiff said she was going home, but was informed that she could not. As plaintiff walked to the parking lot everyone followed "like a three-ring circus," except for Snyder. As plaintiff entered her car, Yheaulon said they could not permit her to leave because it was a known fact that nurses who are caught diverting drugs commit suicide. She continued, saying that if plaintiff was innocent she should go back into the hospital and submit to a drug screen test. Plaintiff then announced to the group that she quit her job. Unidentified people walking by on the street witnessed the scene, and people inside the hospital looked out the windows to see what was going on. Plaintiff walked away to find a phone, and when she returned, the women had dispersed. She then drove home.
When she arrived home, plaintiff's husband, Michael Govito, asked her if she was addicted to drugs, and she answered in the negative. According to Michael, Oresic had called him at about 8:00 a.m. and said there was a "problem" with his wife, indicating that she was a drug addict and needed treatment. Oresic told him that plaintiff would be suicidal and that they had reserved a room for her at the Parkside Hospital, a drug treatment facility. According to Michael, he called Oresic back at 11:00 a.m. and asked her what kind of drug was involved, and she told him it was morphine.
Michael made an appointment for plaintiff to have a drug test that day, but plaintiff did not keep the appointment on their attorney's advice. Two days later, on November 5, 1993, plaintiff went to her family doctor who performed a drug screen test, which was negative, and found no track marks anywhere on her body. Plaintiff had seen the doctor six months earlier due to extreme fatigue, diarrhea, and weight loss. At that time, she had blood tests done, which were normal.
According to Jacqueline Fish, a nurse at WJHS, on November 4, Floyd called a meeting of the nurses and discussed protocol for the dispensing of medication; she also stated that some nurses are impaired. At the end of the meeting, Floyd announced that plaintiff had resigned. Although she did not specifically say so, Fish understood Floyd to be insinuating that plaintiff was a drug addict.
Plaintiff felt "horrible," "humiliated" and "embarrassed" after this incident and was barely able to get out of bed or care for her two children.
In February 1994, the State issued its investigation report. Plaintiff admittedly had violated, albeit unwittingly, hospital protocol by supplying morphine to patients without a doctor's order. She admitted to one-hundred occasions over a six-month period when she had signed out narcotics without appropriate documentation and had signed out morphine from another unit. She conceded that this behavior was typical of a drug diverter or user but denied being either. Ultimately, plaintiff consented to a two-year suspension of her nurse's license for the documentation infractions. At the time of trial, she had not reactivated her license because she felt her reputation was irreparably tarnished.
Plaintiff filed a complaint alleging libel and slander against defendants WJHS and Recovery Network as well as intentional or negligent infliction of emotional distress against the same two defendants.
After the presentation of plaintiff's evidence to a jury, defendants moved for an involuntary dismissal pursuant to R. 4:37-2(b). Judge Little concluded that defendants' statements were protected by the Bainhauer privilege. He further concluded that plaintiff failed to establish that defendants abused the privilege. Finally, he found that plaintiff had failed to establish a sufficient basis to submit the issue of negligent infliction of emotional harm to the jury. He granted defendants' motion and dismissed the complaint. This appeal followed.
Plaintiff asserts that the trial judge erred in holding that plaintiff was subject to the same standard as a "public figure" and was obligated to demonstrate actual malice by clear and convincing evidence. She further claims that the Bainhauer privilege did not apply, and if it did apply, such privilege was lost because defendants recklessly and excessively published defamatory statements to third parties; moreover, such defamatory matters were not in the public interest. Finally, plaintiff claims that the trial judge erred by dismissing her claim for negligent infliction of emotional distress.
Our analysis of plaintiff's arguments on appeal requires a review of the applicable principles of law regarding defamation and the Bainhauer privilege.
A defamatory statement is one that is false and 1) injures another person's reputation; or 2) subjects the person to hatred, contempt or ridicule; or 3) causes others to lose good will or confidence in that person. Romaine v. Kallinger, 109 N.J. 282, 289 (1988). A defamatory statement "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1977). "A plaintiff does not make a prima facie claim of defamation if the contested statement is essentially true." Hill v. Evening News Co., 314 N.J. Super. 545, 552 (App. Div. 1998). To prove defamation, a plaintiff must establish damages and that the defendant "(1) made a defamatory statement of fact 2) concerning the plaintiff (3) which was false and (4) which was communicated to a person or persons other than the plaintiff." Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996). The fifth element that must be proven is fault. Id. at 391; Bainhauer v. Manoukian, supra, 215 N.J. Super. at 31. "[F]ault, by whatever standard it is to be measured, is as much an element of the cause of action as the defamatory publication itself." Ibid.
"The law of defamation distinguishes between public figures and private persons." Hill v. Evening News Co., supra, 314 N.J. Super. at 554. Fault in private defamation is proven by a negligence standard. Costello v. Ocean County Observer, 136 N.J. 594, 612 (1994); Kass v. Great Coastal Express, Inc., 291 N.J. Super. 10, 17 (App. Div. 1996), aff'd in part, rev'd in part, 152 N.J. 353 (1998). "Where public officials and other public figures are aggrieved by defamatory publications, the constitutionally mandated standard of fault which constitutes that element of the cause of action is the defendant's knowledge that the defamatory statement is false or his reckless disregard of its truth or falsity." Bainhauer, supra, 215 N.J. Super. at 31. This has been called the "actual malice" standard. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964). In this context, "actual malice" does not require the statement be made with ill will or spite, just "knowledge that it was false or with reckless disregard of whether it was false or not." Ibid.; McLaughlin v. Rosanio, Bailets & Talamo, Inc., N.J. Super. (App. Div. 2000) (slip op. at 11). (distinguishing the two fault standards applied to private versus public figures). "The classification of a plaintiff as a public or private figure is a question of law to be determined initially by the motion or trial judge." Hill v. Evening News Co., supra, 314 N.J. Super. at 554.
Plaintiff argues that she was a private person, not a public figure. Defendants contend that to further public policy objectives, health care personnel have been considered limited public figures. Although Recovery Network correctly notes that the private versus public analysis may be irrelevant when asserting a privilege, the designation of plaintiff as a private or public person is relevant to her underlying cause of action. Cf. McLaughlin v. Rosanio, Bailets & Talamo, Inc., supra, N.J. Super. at (slip op. at 11-12). We therefore first address the issue of her status.
In Bainhauer, supra, an anesthesiologist sued a surgeon who made disparaging comments about his competency to various hospital personnel. We acknowledged the distinction between private persons and public persons in the context of a defamation action noting that in Sisler v. Gannett Co., 104 N.J. 256, 279 (1986), the Supreme Court held that when a private person with sufficient experience, understanding and knowledge enters into a personal transaction or conducts his personal affairs in a manner that one in his position would reasonably expect implicates a legitimate public interest with an attendant risk of publicity, defamatory speech that focuses upon that public interest will not be actionable unless it has been published with actual malice.
Any inquiry or analysis must focus on whether a nurse in a hospital setting falls within the scope of the "public interest" identified in Sisler. Plaintiff contends that she was not a "business" plaintiff, did not inject herself into any public controversy, had no access to the media, sought no media attention, was not a public official and did not have the fame and notoriety of a general-purpose public figure. She claims that no public concern was implicated because the defamatory statements here were not published to protect the public. While we agree that plaintiff was not a public official and sought no notoriety, plaintiff's argument fails to acknowledge the broader public interest in competent nurses and nursing care.
The role of nursing and nurses in a hospital setting has not been static but has dynamically responded to the changing nature of the delivery of health care services, specifically in a hospital setting. Cf. Pegram v. Hendrich, U.S. , S. Ct. , L. Ed. 2d (2000) (recognizing the evolution of health-care delivery as a result of the development of ...