Zambrano v. Devanesan

484 So. 2d 603, 11 Fla. L. Weekly 255
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 1986
Docket83-2685
StatusPublished
Cited by31 cases

This text of 484 So. 2d 603 (Zambrano v. Devanesan) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zambrano v. Devanesan, 484 So. 2d 603, 11 Fla. L. Weekly 255 (Fla. Ct. App. 1986).

Opinion

484 So.2d 603 (1986)

Gabriel ZAMBRANO, Appellant/Cross Appellee,
v.
Jegadees D. DEVANESAN, M.D., and Mona Devanesan, M.D., Appellees/Cross Appellants, and
Devanesan & Zambrano, M.D., P.A., Appellee.

No. 83-2685.

District Court of Appeal of Florida, Fourth District.

January 22, 1986.
Motions for Clarification, Rehearing and Certification Denied March 26, 1986.

*604 Terence J. Watterson and Cort A. Neimark of Watterson & Dickenson, P.A., West Palm Beach, for appellant/cross appellee.

Larry Klein of Klein & Beranek, West Palm Beach, for appellees/cross appellants.

HURLEY, Judge.

This appeal arises from a defamation action instituted by Dr. Zambrano after he allegedly was slandered during a medical staff meeting. The jury found in favor of Dr. Zambrano but, upon motion by the defendants, the trial court granted a remittitur as to compensatory and punitive damages. We affirm in part and reverse in part.

Dr. Zambrano was engaged in the practice of medicine with Dr. Jegadees Devanesan. Defendant Mona Devanesan, the wife of Jegadees Devanesan, is also a physician who maintains a separate practice. Zambrano and Jegadees Devanesan, both surgeons, began their partnership in July of 1980. Both were members of the staff at Hendry General Hospital in Clewiston and, consequently, both had staff privileges there. Mona Devanesan was also a staff member at the hospital and had similar privileges and duties. As part of their obligation to the hospital, Zambrano and Jegadees Devanesan were required to be on-call for the hospital emergency room. This required their availability on a twenty-four hour basis for emergency patients who did not have a personal physician. The on-call schedule for each month was prepared by the hospital's chief of staff, Dr. Shupe. Zambrano and Jegadees Devanesan, in turn, would make arrangements *605 between themselves to meet their on-call obligations.

In the course of their practice, both physicians applied for staff privileges at a second hospital. Jegadees Devanesan was granted privileges first, in December of 1980. Zambrano was awarded similar privileges two months later. Jegadees Devanesan's receipt of privileges carried with it an obligation to be on-call at the second hospital. Consequently, he devised a new schedule for himself and Zambrano, whereby each would handle an equal number of on-call days. Devanesan's schedule contained the sum of the on-call days for both hospitals and he proposed that the total figure be split equally, even though Zambrano had not yet received privileges at the second hospital. Zambrano declined to accept this proposal. He concluded that the revised schedule required him to cover most of Devanesan's on-call obligations at Hendry as well as his own, with no attendant benefits for Zambrano at the second hospital. When the two physicians were unable to resolve their differences, they decided to terminate their partnership in early January of 1981.

As a result of this decision, Zambrano lost the use of a house which the two doctors had used as a temporary residence while on-call. Therefore, Zambrano asked the hospital's chief of staff, Dr. Shupe, to relieve him of his on-call duties for the month of January. Shupe agreed to rearrange the schedule and told Zambrano not to worry. Zambrano also sought to have his regular staff privileges converted to consulting staff privileges, and this request was granted during the regular January meeting of the Hendry Hospital's medical staff. Neither of the Devanesans were present during this meeting.

The Devanesans, however, did attend the February staff meeting and made certain statements which gave rise to the present suit. The February meeting was not transcribed, but the participants later testified about what occurred. According to the testimony at trial, the Devanesans stated that Zambrano had neglected his practice and abandoned his obligations. Further, they said that Zambrano had deserted his responsibilities and duties; that he had walked away from his private practice, and his hospital on-call schedule, without prior notice; and that he had acted in an unprofessional and unethical manner.

At the conclusion of their remarks, Mona Devanesan made a motion to withdraw all of Zambrano's staff privileges. The motion was seconded and passed on a vote of five in favor, none opposed, and one abstention. The testimony at trial revealed that not everyone present during this meeting knew all of the facts underlying the controversy. For example, one physician, Dr. Khanna, testified that he had based his vote to revoke Zambrano's privileges solely on the information presented by the Devanesans, and that the information had been presented as fact, not opinion. Khanna also said that he would not have voted as he did if all of the facts had been presented, viz., that Zambrano had given advance notice and made arrangements with the hospital's chief of staff to cover the days for which he had been scheduled for on-call duty. This information apparently never surfaced at the meeting. Interestingly, both Devanesans testified that they considered this information irrelevant, and Jegadees Devanesan testified that he had no knowledge that Zambrano had made prior arrangements with Dr. Shupe, the chief of staff, until Dr. Shupe took the stand and testified at trial.

In any event, Zambrano's hospital privileges were never actually revoked. The staff's recommendation to revoke his privileges was not accepted by the Hospital Authority. During the March 1981 staff meeting at the hospital, there was further discussion on the matter, including additional comments by Jegadees Devanesan. At the conclusion of the discussion, a motion was made to rescind the earlier decision on withdrawing Zambrano's privileges, and it passed unanimously.

Zambrano subsequently sued the Devanesans for defamation based on their statements at the staff meetings. The jury *606 awarded Zambrano $75,000 as compensatory damages and $100,000 as punitive damages. After the verdict, the Devanesans renewed their earlier motion for a directed verdict, contending that their comments were pure opinion and thus protected speech. The trial court denied the motion, concluding that the combination of the Devanesans' remarks, together with their motion at the February meeting (to rescind Zambrano's privileges) created a factual question for the jury's resolution. The court, however, did find that the damage awards were excessive and, therefore, ordered a new trial on both liability and damages unless Zambrano agreed to a remittitur reducing the compensatory damages to $7,867.50 and the punitive damages to $7,000. Zambrano declined the remittitur and initiated this appeal. The Devanesans cross appeal and challenge the lower court's ruling regarding the actionable nature of their statements.

We start with the cross appeal, wherein the Devanesans urge that their statements to the medical staff, in reference to Zambrano, were pure opinion and thus not actionable. The determination whether a statement is fact or opinion is a question of law for resolution by the court. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981), review denied, 412 So.2d 465 (Fla. 1982). Moreover, an appellate court may make the determination of opinion versus fact on review. The distinction between fact and opinion is not always easy to perceive. Thus, the law recognizes that some comments may be pure expressions of opinion whereas others may be mixed expressions of opinion. The distinction between these concepts was discussed in Hay v. Independent Newspapers, Inc.,

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Bluebook (online)
484 So. 2d 603, 11 Fla. L. Weekly 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zambrano-v-devanesan-fladistctapp-1986.