Farber v. Bobear

56 So. 3d 1061, 2010 La.App. 4 Cir. 0985, 2011 La. App. LEXIS 40, 2011 WL 188533
CourtLouisiana Court of Appeal
DecidedJanuary 19, 2011
DocketNo. 2010-CA-0985
StatusPublished
Cited by12 cases

This text of 56 So. 3d 1061 (Farber v. Bobear) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farber v. Bobear, 56 So. 3d 1061, 2010 La.App. 4 Cir. 0985, 2011 La. App. LEXIS 40, 2011 WL 188533 (La. Ct. App. 2011).

Opinions

EDWIN A. LOMBARD, Judge.

|!Plaintiff, George A. Farber, Sr., M.D., appeals to this Court a judgment of the district court sustaining an exception of prescription filed by John Bobear, M.D. and Stacy Gaudin, resulting in the dismissal of plaintiffs’ defamation claim against them. Dr. Farber also appeals, from the same judgment, the granting of summary judgment in favor of Rita Arceneaux, dismissing a separate claim of defamation against her. Finally, plaintiff appeals the awarding of attorney’s fees and costs pursuant to La.Rev.Stat. § 37:1287 from a separate judgment of the trial court. For the reasons provided below, we affirm the judgments of the district court.

Factual and Procedural History

Dr. George A. Farber is a dermatologist in the greater New Orleans area. In the past decade, Dr. Farber has become involved in various complaints and investigations before the Louisiana State Board of Medical Examiners (“LSBME” or “the Board”), the state’s governing entity for qualifications and the quality of practice of medical doctors and other healthcare professionals. Dr. Farber has also filed multiple lawsuits in federal and state courts against the Board and its members. In 2002, an investigation by the Board had “developed information indicating that” Dr. Farber had “provided care to a patient in a substandard matter Rand routinely administered Lincocin contrary to current standards of practice and Board warnings.” 1

As a result of a patient complaint against Dr. Farber, a Consent Order (hereafter known as the “2002 Consent Order”) was issued by the Board, reprimanding Dr. Farber for “clinical mismanagement” of the complaining patient and for “the inappropriate prescriptions of Lin-cocin.” As part of the 2002 Consent Order, Dr. Farber was prohibited from prescribing or administering Lincocin to any patient for any reason. It was further ordered that Dr. Farber must obtain a second opinion from another dermatologist or oncologist for the malignancy management of all melanoma and similar skin cell diseases, and continue to obtain such second opinions as treatment itself continues. Finally, the 2002 Consent Order, dated March 19, 2002, required that Dr. Farber obtain additional continuing medical education credits in dermatology over the next five years. Dr. Farber signed an “Ac[1065]*1065knowledgment and Consent” by Authentic Act, accepting the findings of the 2002 Consent Order.

On August 9, 2004, plaintiff filed a lawsuit in federal court against the LSBME, Dr. Cecilia Mouton and Dr. John Bobear as members of the Board, and the Louisiana Attorney General, alleging violation of constitutional rights, civil rights, and an un-described claim for defamation. On September 21, 2004, the entirety of plaintiffs first federal suit was dismissed on summary judgment, with the federal district court declining to exercise jurisdiction over Dr. Farber’s state law claim for defamation.

|3On August 15, 2005, the Board issued a second consent order (the “2005 Consent Order”) against Dr. Farber. On the basis of a new administrative complaint, the Board concluded that Dr. Farber violated the 2002 Consent Order by prescribing Lincocin. Dr. Farber again waived all rights to formal adjudication of the matter and again freely acknowledged the 2005 Consent Order via Authentic Act, which placed him on probation for five years.2

On July 3, 2006, plaintiff filed a second federal lawsuit, naming as defendants the LSBME, Rita Arceneaux, and the Attorney General of the State of Louisiana. In this second federal suit, plaintiff pled the two claims of defamation that are raised in the lawsuit at hand. First, he alleged that Dr. Bobear defamed him by submitting in a subpoena duces tecum response to an attorney incorrect information regarding professional discipline in Rhode Island. Second, he alleged that Rita Arceneaux committed defamatory actions by providing allegedly false information to various national practitioner databanks regarding his medical license and conduct in Louisiana. The federal court dismissed plaintiffs second federal suit, including the defamation claim concerning Dr. Bobear, and the federal court’s reasons included a discussion of plaintiffs defamation claim against Ms. Arceneaux:

Finally, without any allegation of “malice,” Plaintiffs claim of defamation against Defendant Arceneaux (an employee of the Board) must be dismissed because she has statutory immunity pursuant to LSA-R.S. 37:1287 ...
... To the extent that Plaintiff is seeking (in this instant case) either declaratory and/or injunctive relief against the 2002 Consent Order, or raising constitutional challenges to the 2002 Consent Order, he is barred from doing so by the doctrines of collateral estoppel and res judicata based on this court’s findings |4in Plaintiffs 2004 federal suit and the dismissal of his Petition for Judicial Review filed in Civil District Court (CDC).

The first case in Civil District Court, in which Dr. Farber filed a “Petition for Judicial Review of Administrative Action,” was dismissed by this Court on an exception of no cause of action filed by the Board. Farber v. Louisiana State Bd. of Medical Examiners, 2009-0301 (La.App. 4 Cir 9/9/09), 22 So.3d 962.

Dr. Farber filed the present lawsuit on May 19, 2008 against Dr. John Bobear, for his role as the former Chief of Investigations for the LSBME, and against Stacy Gaudin and Rita Arceneaux, in their role as employees of the Board. In this suit, Dr. Farber raised a claim for defamation against Dr. Bobear and Ms. Gaudin, and raised a separate claim for defamation against Ms. Arceneaux for a different alleged publication. Dr. Bobear and Ms. Gaudin filed an exception of prescription [1066]*1066as to the defamation claim alleged against them, and Ms. Arceneaux filed a motion for summary judgment to dismiss Dr. Far-ber’s defamation claim against her. The district court sustained the exception of prescription and granted summary judgment, respectively. Later, on motion by all defendants, the district court awarded attorney’s fees to the defendants in the amount of $25,223.79, to be paid by Dr. Farber. It is these judgments that Dr. Farber appeals to this Court.

Assignments ofEiror

Plaintiff first argues that the district court erred in granting summary judgment to Ms. Arceneaux and dismissing his claim of defamation against her. Secondly, Dr. Farber argues that the district court erred in sustaining the exception of prescription filed by Dr. Bobear and Ms. Arceneaux, and argues that his defamation claim constitutes a continuing tort which has not prescribed. Alternatively, plaintiff asserts that this defamation claim is not prescribed because |fiof the existence of joint solidarity by all defendants as a result of the alleged defamatory publication by Ms. Arceneaux. Lastly, Dr. Farber argues that the district court erred in awarding attorney’s fees and costs to defendants under La.Rev.Stat. § 37:1287. Defamation

The Louisiana Supreme Court has recently addressed defamation in Costello v. Hardy, 2003-1146, pp.

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Bluebook (online)
56 So. 3d 1061, 2010 La.App. 4 Cir. 0985, 2011 La. App. LEXIS 40, 2011 WL 188533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farber-v-bobear-lactapp-2011.