Barmada v. Pridjian

989 So. 2d 359, 2008 WL 3500912
CourtMississippi Supreme Court
DecidedAugust 14, 2008
Docket2007-CA-00764-SCT
StatusPublished
Cited by9 cases

This text of 989 So. 2d 359 (Barmada v. Pridjian) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barmada v. Pridjian, 989 So. 2d 359, 2008 WL 3500912 (Mich. 2008).

Opinion

989 So.2d 359 (2008)

Hazem BARMADA, M.D.
v.
Ara K. PRIDJIAN, M.D.

No. 2007-CA-00764-SCT.

Supreme Court of Mississippi.

August 14, 2008.

*361 Wendy C. Hollingsworth, Ocean Springs, attorney for appellant.

Gail D. Nicholson, Chester D. Nicholson, Gulfport, attorneys for appellee.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. Dr. Hazem Barmada appeals to this Court from the grant of summary judgment in favor of the Defendant, Dr. Ara K. Pridjian. Barmada sued Pridjian for alleged defamation arising out of their working relationship as heart surgeons at Memorial Hospital at Gulfport. Barmada raises the following issues on appeal:

I. Whether the Trial Court Erred in Finding That the Defendant Was Protected by Qualified Privilege.
II. Whether the Trial Court Erred in Finding That There Was No Genuine Issue of Material Fact Regarding Actual Malice, Bad Faith, and/or Abuse of Qualified Privilege.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2000, the credentials committee at Memorial Hospital at Gulfport ("Memorial") considered Dr. Hazem Barmada, a cardiothoracic surgeon, for the cardiac surgery program. A member of the committee asked Dr. Ara Pridjian, the medical director of cardiac surgery, to inquire about Barmada's background using sources identified in Barmada's resume. Some responses were critical of Barmada, and that information was reported to the committee. The committee found nothing that impugned Barmada's medical or surgical abilities and accepted him on staff.

¶ 3. Thereafter, Barmada became the subject of criticism from doctors and staff at Memorial. The Chief of Cardiovascular Sciences at Memorial, Dr. Milton Concannon, testified by affidavit that Barmada's mortality rate exceeded the threshold set for cardiac surgeons at Memorial. Concannon testified that Barmada's mortality rate coupled with the complaints necessitated an independent review of some of Barmada's cases. The independent review found Barmada's work to be "adequate," although it did confirm the higher mortality rate.

¶ 4. In February 2002, Barmada initiated this lawsuit against Pridjian alleging defamation. In May 2002, Pridjian filed his answer and counterclaim.[1] In October 2006, Pridjian filed a motion for summary judgment. Pridjian filed in support of his motion numerous affidavits as well as depositions of Barmada and himself. In response, Barmada relied on two documents, an affidavit of Nurse David Kutlina and Dr. Paul Robinson's independent review.

¶ 5. The circuit court noted Kutlina's testimony that Pridjian made "generally *362 slanderous comments about [Barmada] in front of the heart team at memorial." (Emphasis in original). The circuit court ruled that Dr. Robinson's review "has no legal effect since Dr. Robinson was neither deposed nor did he submit an affidavit containing the information relied upon by the Plaintiff." The trial court granted Pridjian's motion for summary judgment, finding that a qualified privilege applied and that there was no evidence before the court of malice. Aggrieved by the trial court's judgment, Barmada filed this appeal.

LEGAL ANALYSIS

¶ 6. A de novo standard is applied when reviewing a trial court's grant of summary judgment. Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000). Under Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The party seeking summary judgment bears the burden of proving there is no genuine issue of material fact. Miller, 762 So.2d at 304. The court must review all evidence in a light most favorable to the party against whom the motion for summary judgment is made. Id.

¶ 7. The tort of defaming a person's character or reputation through the spoken word is actionable under the common law doctrine of slander. Speed v. Scott, 787 So.2d 626, 631 (Miss.2001). "Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." Id. (internal quotations omitted)

I. Whether the Trial Court Erred in Finding That the Defendant Was Protected by Qualified Privilege.

¶ 8. Barmada argues that summary judgment granted in favor of Pridjian was not proper because statements made by Pridjian are not protected by a qualified privilege. Pridjian argues that summary judgment was proper because he is immune from liability for slander based on qualified privilege.

¶ 9. When analyzing defamation claims, Mississippi courts employ a bifurcated process. Eckman v. Cooper Tire & Rubber Co., 893 So.2d 1049, 1052 (Miss. 2005). First, the Court must determine whether the occasion calls for a qualified privilege. Id. If a qualified privilege does exist, the Court must then determine whether the privilege is overcome by malice, bad faith, or abuse. Id. This Court has defined qualified privilege as "[a] communication made in good faith and on a subject matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous...." Id. This Court has recognized that a privilege exists with regard to communications between employers and employees. Young v. Jackson, 572 So.2d 378, 383 (Miss.1990).

¶ 10. Kutlina testified by affidavit that Dr. Pridjian had made defamatory statements to the heart team while performing surgeries. Dr. Pridjian testified in his deposition that he had discussed Barmada's competency with other physicians and staff at Memorial and with an independent reviewer. The following exchange took place during Pridjian's deposition regarding conversations with physicians who were not on staff at Memorial:

*363 Q: What did you tell them about Dr. Barmada?
A: They told me. They told me things that they had heard.
Q: Such as what?
A: That he was a surgeon who needed help as you alluded to in the letter.
Q: Anything else?
A: No.
Q: Did you sit silently and listen, or did you share with them your opinions regarding Dr. Barmada?
A: I'm under oath. I've got to tell you I don't remember.

(Emphasis added). If these people shared a direct interest in Barmada's competency, then qualified immunity applies.

¶ 11. In Hayden v. Foryt, a supervising doctor discussed charges of incompetency against a fellow doctor at various meetings with administrators and also at a surgical staff meeting, "attended by all members of the hospital medical surgical staff, except for one physician on leave." Hayden v. Foryt, 407 So.2d 535, 537 (Miss.1981). This Court held that "the persons present in those meetings were directly interested in the matter and that the qualified privilege prevailed...." Id. at 538. The hospital in Hayden also employed an independent review of some of the physician's cases by a visiting doctor. Id. The supervising doctor expressed his concerns in the incompetency of the doctor with the reviewing physician. Id.

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