Hernandez v. Avera Queen of Peace Hospital

#27662-a-LSW
2016 S.D. 68

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
DR. SONIA HERNANDEZ, D.O., Plaintiff and Appellant,

v.

AVERA QUEEN OF PEACE
HOSPITAL (AQOP) and DR. JOE
KRALL, Optometrist, in his official
capacity and personally, Defendants and Appellees.

****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
DAVISON COUNTY, SOUTH DAKOTA
****
THE HONORABLE TIMOTHY W. BJORKMAN
Judge
****
DR. SONIA HERNANDEZ, D.O.
Grand Prairie, Texas Pro se plaintiff and appellant.

LISA HANSEN MARSO
MATTHEW D. MURPHY of
Boyce Law Firm, LLP
Sioux Falls, South Dakota Attorneys for defendants and
appellees AQOP, Chris Lippert,
R.N., Dr. Ray Birkenkamp and
Dr. Jennifer Tegethoff.

WILLIAM C. GARRY of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellee Dr. Joe Krall.

****
CONSIDERED ON BRIEFS
ON AUGUST 29, 2016
OPINION FILED 09/28/16
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WILBUR, Justice

[¶1.] After a hospital terminated its employee doctor, the doctor brought

suit against the hospital and against multiple persons associated with the hospital.

The circuit court dismissed a number of the doctor’s causes of action, leaving for a

jury to determine whether the hospital breached the employment contract and

whether one party defamed the doctor. During the jury trial, the court entered a

judgment as a matter of law dismissing the defamation action. The jury returned a

verdict in favor of the hospital on the breach of contract claim. The doctor appeals,

asserting the circuit court erred when it dismissed many of her claims against the

hospital and the additional parties and when it dismissed her defamation claim

during trial. We affirm.

Background

[¶2.] Avera Queen of Peace Hospital (Avera) of Mitchell, South Dakota

began employment negotiations with Dr. Sonia Hernandez in 2011 while Dr.

Hernandez finished her ophthalmology residency in New York. According to Dr.

Hernandez, Avera wanted her to replace the practice of a retiring local

ophthalmologist with a hospital-owned ophthalmology practice. She claimed that

Avera offered incentives to entice her to move to South Dakota, such as providing

her an office, support staff, and loan forgiveness. On February 11, 2011, the parties

finalized the terms of their agreement, and Avera and Dr. Hernandez executed an

employment contract.

[¶3.] In August 2011, Dr. Hernandez arrived in Mitchell, South Dakota and

commenced her employment. She also purchased a home. Avera had leased space

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from the Krall Eye Clinic in Mitchell for Dr. Hernandez to use as an office.

According to Dr. Hernandez, when she arrived in August, the office was unprepared

and Avera failed to provide sufficient staff or equipment. She alleged that Avera’s

failure to honor its contractual agreement delayed her ability to see patients until

October 2011.

[¶4.] Between October and November 2011, Dr. Hernandez performed six

surgeries. Dr. Hernandez experienced complications during her first three

surgeries. According to Dr. Hernandez, the complications occurred because the staff

was not properly trained and the equipment was not in working order. After these

first three surgeries, Avera assigned a proctor to work with Dr. Hernandez. Avera

did so due to its concerns about Dr. Hernandez’s complication rate and other issues.

Dr. Jeffery Stevens proctored the next three surgeries performed by Dr. Hernandez.

Afterwards, Dr. Stevens met with Avera’s operating room director, Chris Lippert.

Dr. Stevens informed Lippert that he had concerns about the way Dr. Hernandez

operated because of her surgical techniques and the way she used the equipment.

Dr. Stevens also issued a report. In the report, he recommended that Dr.

Hernandez be monitored closely for at least three months if she were to continue to

perform surgical procedures at Avera.

[¶5.] On November 22, 2011, Dr. Hernandez became, as she described,

“gravely ill.” Dr. Hernandez was hospitalized and informed Avera that she could

not return to work until December 7, 2011. She took a leave of absence, which was

indicated on Avera’s “Personnel Action Form” as a “Medical Leave of Absence.”

While Dr. Hernandez was on medical leave, Avera orally informed her that it would

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be terminating her immediately based on Section 8a of the employment contract.

On January 18, 2012, Avera issued a letter giving Dr. Hernandez official notice that

“Avera Queen of Peace is immediately terminating your employment.” Avera

informed Dr. Hernandez that “three (3) of your six (6) surgical cases resulted in

patient complications and two (2) of those were considered significant. Avera Queen

of Peace considers that patient health or safety is in imminent and serious danger

from your actions.” On the same day, Avera issued Dr. Hernandez a second letter

informing her that it would be “summarily suspending [her] surgical privileges at

Avera” due to her inability to “perform surgical procedures without such supervision

and monitoring” and that “there is substantial likelihood of injury or damage to

patients at Avera[.]”

[¶6.] After terminating Dr. Hernandez, Avera continued its peer review

investigation of her cases and of its decision to suspend her privileges. Avera

ceased its peer review because, according to Avera, Dr. Hernandez let her South

Dakota medical license lapse. Under Avera’s bylaws and its fair hearing plan, a

physician must be licensed in South Dakota to have privileges at Avera. In Avera’s

view, because Dr. Hernandez let her medical license lapse, Avera did not need to

review its decision to suspend Dr. Hernandez’s privileges. Also, according to Avera,

under the Health Care Quality Improvement Act (HCQIA) 42 U.S.C. § 11101 et seq.,

Avera was required to report Dr. Hernandez’s licensure forfeiture and privileges

suspension to the National Practitioners Data Bank (NPDB). Therefore, Avera filed

a report with the NPDB indicating that Dr. Hernandez let her medical license lapse

and no longer had privileges at Avera.

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[¶7.] In May 2012, Dr. Hernandez brought suit against Avera for (1)

negligent misrepresentation, (2) fraud, constructive fraud, and fraud in the

inducement, (3) breach of contract, (4) declaratory action, and (5) punitive damages.

She asserted that she relied upon Avera’s representations to her detriment. She

claimed that Avera induced her to accept long-term employment when it was aware

that such position was experimental in nature and that Avera suppressed facts

about the true nature of the commitment. She alleged that as a result of Avera’s

breach of the implied covenant of good faith and fair dealing, she suffered damage.

Dr. Hernandez asked the circuit court to declare that Avera be barred from seeking

repayment of its loans to Dr. Hernandez.

[¶8.] Dr. Hernandez amended her complaint, adding Tom Clark, Chris

Lippert, Dr. Ray Birkenkamp, Dr. Joe Krall, Dr. Jennifer Tegethoff, and Katena

Products as parties. Dr. Hernandez added claims for discrimination, slander/libel,

retaliation, gross negligence, and negligence per se. She alleged that Avera and

Clark (the CEO of Avera) discriminated against her when they terminated her

while she was on medical leave, when they violated the Americans with Disabilities

Act (ADA), and when they terminated her based on her age, race, and sex in

violation of Title VII of the Civil Rights Act of 1964. Dr. Hernandez asserted that

Lippert and Dr. Krall “committed Slander or Libel” against her while she was

employed at Avera, and Drs. Birkenkamp and Krall committed slander/libel after

she returned from medical leave, and Lippert and Drs. Tegethoff and Birkenkamp

committed slander/libel against her after Avera terminated her employment. Dr.

Hernandez further claimed that because she refused to sign a severance agreement,

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Avera and Clark retaliated against her, wrongfully terminated her, suspended her

hospital privileges, and reported “a bias report” to the NPDB. According to Dr.

Hernandez, Avera engaged in gross negligence or negligence per se because it

breached “its duty to perform the necessary inspections on surgical instruments

acquired from Katena Products,” because it did not have sufficient back up surgical

instruments, and because its surgical instruments fell below the Joint Commission

on Accreditation of Healthcare Organizations and Quality Care standards.

[¶9.] Each defendant filed an answer, and Avera asserted a counterclaim for

payment due on its loan to Dr. Hernandez. The defendants also moved to dismiss

Dr. Hernandez’s amended complaint for failure to state a claim upon which relief

could be granted. The circuit court held a hearing on August 27, 2013. Dr.

Hernandez appeared pro se. On September 13, 2013, the court issued an order

granting Katena Products’ motion to dismiss with prejudice. The court granted

Avera’s motion to dismiss with prejudice on the claims of gross

negligence/negligence per se, slander/libel, and retaliation. The court granted

Clark’s motion to dismiss with prejudice. The court granted Dr. Krall’s, Lippert’s,

Dr. Birkenkamp’s, and Dr. Tegethoff’s motions to dismiss with prejudice. However,

the court granted Dr. Hernandez “leave to file a second amended complaint as to

her slander/libel allegations against these Defendants[.]”

[¶10.] Dr. Hernandez filed a second amended complaint in October 2013. She

amended her defamation claims against Lippert and Drs. Birkenkamp and

Tegethoff. She also restated her defamation claim against Avera. Avera moved to

strike the second amended complaint and the other defendants moved to dismiss

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the second amended complaint. The court held a hearing. It issued an order on

November 12, 2013, dismissing the defamation claims against Lippert and Drs.

Birkenkamp and Tegethoff and struck/dismissed the defamation claim against

Avera. 1 After this order, the remaining causes of actions and parties included:

slander/libel against Dr. Krall and negligent misrepresentation, fraud, breach of

contract, and discrimination against Avera.

[¶11.] In April 2015, Avera and Dr. Krall moved for summary judgment on

all of Dr. Hernandez’s remaining claims. The circuit court held a hearing on June 5,

2015, and issued an order dismissing all claims except for the “Breach of

Employment Contract claim relating to [Dr. Hernandez’s] termination only.” The

court’s written order indicated that the court dismissed “Plaintiff’s pending

Misrepresentation claim, Fraud claim, Discriminatory Discharge claim,

Discriminatory National Practitioner Databank (NPDB) reporting or any other

claim based upon [Avera’s] NPDB report about the Plaintiff, Breach of Contract

claims relating to equipment, facilities, staff, supplies, and/or length of employment

term, and her request for Punitive Damages.” The court denied Dr. Krall’s motion

for summary judgment.

[¶12.] Dr. Hernandez’s case against Avera and Dr. Krall came before a jury

on October 13, 2015. At the close of the case, Dr. Krall moved for a judgment as a

1. Dr. Hernandez appealed the court’s dismissal order to this Court. We
dismissed the appeal on December 19, 2013, informing Dr. Hernandez that
“the above-entitled matter is not an order appealable of right pursuant to
SDCL 15-26A-3[.]” We issued a subsequent order on January 23, 2014,
denying Dr. Hernandez’s motion to reinstate her appeal and stay
proceedings.

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matter of law. The court granted Dr. Krall’s motion. On October 16, 2015, the jury

returned a verdict in favor of Avera on Dr. Hernandez’s claim that Avera breached

the parties’ employment contract.

[¶13.] Dr. Hernandez, pro se, appeals and asserts the following issues for our

review:

1. Did the circuit court err in dismissing the defamation
claim against Lippert, Drs. Birkenkamp and Tegethoff,
and Avera on the basis of immunity since those parties
failed to meet the standards set forth in 42 U.S.C.
§ 11112(a), (b), and (c).
2. Did the circuit court err in dismissing the defamation
claim against Lippert, Drs. Birkenkamp and Tegethoff,
and Avera since those parties knowingly reported false
and misleading information to the NPDB.
3. Did the circuit court err in dismissing the defamation
claim against Avera and Dr. Tegethoff since those parties
knowingly reported false and misleading information to
the Texas Medical Board on Form L.
4. Did the circuit court err in dismissing the discrimination
action against Avera for terminating Dr. Hernandez in
violation of the Family Medical Leave Act.
5. Did the circuit court err in dismissing the discrimination
action against Avera for terminating Dr. Hernandez in
violation of the Americans with Disabilities Act.
6. Did the circuit court err in dismissing the discrimination
claim under Title VII because Avera knowingly reported
false and misleading information to the NPDB.
7. Did the circuit court err in dismissing the wrongful
termination and suspension of privileges claims before
engaging in the peer review process of Dr. Hernandez
under Avera’s bylaws and under 42 U.S.C. § 11112(a), (b),
and (c).
8. Did the circuit court err in dismissing the discrimination
claim under Title VII against Avera.
9. Did the circuit court err in dismissing the defamation
claim against Dr. Krall in the middle of the trial due to
Dr. Hernandez’s crying on the witness stand while
testifying, and not as a matter of law.
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Analysis

[¶14.] Dr. Hernandez’s first three issues concern her defamation causes of

action. 2 In September and October 2013, the circuit court dismissed Dr.

Hernandez’s defamation claims against Lippert, Drs. Birkenkamp and Tegethoff,

and Avera with prejudice because Dr. Hernandez’s amended complaint failed to

state a claim upon which relief could be granted under SDCL 15-6-12(b)(5).

[¶15.] We review the circuit court’s decision to grant a motion to dismiss

under SDCL 15-6-12(b)(5) de novo. We no longer apply the rule that “a complaint

should not be dismissed for failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.” See Sisney v. Best Inc., 2008 S.D. 70, ¶ 7, 754 N.W.2d 804,

808, abrogating Schlosser v. Norwest Bank S.D., 506 N.W.2d 416, 418 (S.D.1993).

Instead, to survive a motion to dismiss under SDCL 15-6-12(b)(5), “[f]actual

allegations must be enough to raise a right to relief above the speculative level. The

pleading must contain something more than a statement of facts that merely

creates a suspicion of a legally cognizable right of action on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).” Best, 2008 S.D.

70, ¶ 7, 754 N.W.2d at 808 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

2. Avera argues that Dr. Hernandez’s issues are not properly before this Court
because Dr. Hernandez failed to identify the circuit court’s September 2013
or November 2013 orders in her notice of appeal and failed to include the
orders in the appendix of her brief to this Court. Dr. Hernandez is not
represented by counsel on appeal. In her docketing statement filed with her
notice of appeal, she indicated that the circuit court dismissed her claims for
defamation against these parties. We consider her claims.

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553, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007); Sisney v. State, 2008 S.D.

71, ¶ 8, 754 N.W.2d 639, 643. As we stated in Sisney:

“While a complaint attacked by a Rule 12(b)(5) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause action will not do.” The rules
“contemplate a statement of circumstances, occurrences, and
events in support of the claim presented.” Ultimately, the claim
must allege facts, which, when taken as true, raise more than a
speculative right to relief. Furthermore, “where the allegations
show on the face of the complaint there is some insuperable bar
to relief, dismissal under Rule 12(b)([5]) is appropriate.”

2008 S.D. 71, ¶ 8, 754 N.W.2d at 643 (internal citations omitted).

[¶16.] In her argument to this Court, Dr. Hernandez does not cite or refer to

the allegations specifically contained in her amended complaint or second amended

complaint, which are the two documents this Court is confined to reviewing because

Dr. Hernandez’s claims were dismissed under SDCL 15-6-12(b)(5). Instead, Dr.

Hernandez refers us to testimony offered at trial on her breach of contract claim

against Avera and defamation claim against Krall. She also refers this Court to

evidence that is not part of the record. Because, on this issue, we cannot review the

record in its entirety or the testimony offered at trial, we analyze Dr. Hernandez’s

argument by reviewing her amended complaint and second amended complaint.

[¶17.] In regard to her claim against Avera, Dr. Hernandez’s amended

complaint alleges “[t]hat Defendant Avera Queen of Peace committed Libel against

Plaintiff by providing information that was bias, to the National Practitioners Data

Bank.” An action for libel under SDCL 20-11-3 requires an unprivileged, false

publication. The court dismissed the claim against Avera relying on Wojewski v.

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Rapid City Reg. Hosp., Inc., 2007 S.D. 33, 730 N.W.2d 626. It found that, under

Wojewski, Dr. Hernandez’s cause of action, “could not under any set of

circumstances result in a favorable outcome for the plaintiff because of the

immunity” under HCQIA.

[¶18.] Avera argues that the circuit court relied on the wrong immunity

provision, but was correct to rule that Dr. Hernandez would not be entitled to relief

because Avera had immunity in making its report to the NPDB. Avera contends

that immunity exists under 42 U.S.C. § 11137(c) rather than 42 U.S.C. § 11112

relied upon by the circuit court. We agree. Under 42 U.S.C. § 11133, Avera is

required to report adverse action taken with respect to the clinical privileges of its

physicians. See Hooda v. W.C.A. Serv. Corp., No. 11-CV-504-A, 2013 WL 2161821

(W.D.N.Y. May 17, 2013). Then, under 42 U.S.C. § 11137(c), Avera would have

immunity from civil liability for making the report unless Dr. Hernandez could

establish that the report was made with knowledge of the falsity of the information

contained in the report. See Lee v. Hosp. Auth., 353 F. Supp. 2d 1255, 1265 (M.D.

Ga. 2004) (immunity under this section arises when the claim is based on damages

due to the report to the NPDB).

[¶19.] Here, Avera suspended Dr. Hernandez’s privileges and began an

investigation. While the investigation was pending, Dr. Hernandez let her medical

license lapse. Nowhere in her amended complaint does Dr. Hernandez claim that

Avera’s report is false. She claims the report was “bias.” Because “the allegations

show on the face of the complaint there is some insuperable bar to relief,” the circuit

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court did not err when it dismissed Dr. Hernandez’s defamation claim against

Avera. See Sinsey, 2008 S.D. 71, ¶ 8, 754 N.W.2d at 643.

[¶20.] In regard to her defamation claims against Lippert and Drs.

Birkenkamp and Tegethoff, the circuit court allowed Dr. Hernandez to amend her

amended complaint. In her second amended complaint, Dr. Hernandez alleged that

Dr. Birkenkamp “intentionally and knowingly reported false and misleading

information to the NPDB” when he gave her a poor rating after reviewing her work.

She asserted that Dr. Birkenkamp committed libel by giving the poor report,

contributing to her termination and suspension of privileges, his “involvement in a

bias . . . report to the NPDB, loss of job opportunities, and inability to obtain a

Texas Medical License to practice medicine in Texas.” In regard to Lippert, Dr.

Hernandez alleged that he committed libel/slander when he discussed preoperative

labs at a staff meeting in Dr. Hernandez’s presence and when he wrote inaccurate,

false, and malicious statements to others associated with Avera related to Dr.

Hernandez’s care of her patients. In Dr. Hernandez’s view, Lippert’s information

was used in the report to the NPDB. Finally, in regard to Dr. Tegethoff, Dr.

Hernandez alleged that she “intentionally libeled Plaintiff and committed

defamation of Plaintiff by libeling Plaintiff on the Texas Medical Board, (TMB),

Form L,” by referring to the NPDB report.

[¶21.] The circuit court dismissed Dr. Hernandez’s defamation claims against

these parties because Dr. Hernandez failed to support her claim that these parties

published objectively false statements defaming Dr. Hernandez, not because these

parties had immunity under 42 U.S.C. § 11112. Our review of the record supports

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the court’s conclusion. The second amended complaint does not include “a

statement of circumstances, occurrences, and events in support of the claim

presented” or “allege facts, which, when taken as true, raise more than a

speculative right to relief.” See Sinsey, 2008 S.D. 71, ¶ 8, 754 N.W.2d at 643

(quoting Best, 2008 S.D. 70, ¶ 7, 754 N.W.2d at 808). In her second amended

complaint, Dr. Hernandez does not claim that the report to the NPDB was itself

false. Nor does she identify an objectively false fact published by Lippert or Drs.

Birkenkamp and Tegethoff. The form completed by Dr. Tegethoff for the Texas

Licensure Board merely refers the reader to the NPDB report. And Dr.

Birkenkamp’s notes, even if they contained false statements, were never published.

Lastly, Dr. Hernandez attributes no falsity to Lippert’s statements or notes.

Because the court dismissed Dr. Hernandez’s claims against Lippert and Drs.

Birkenkamp and Tegethoff for Dr. Hernandez’s failure to show she is entitled to

relief, we need not examine the court’s decision to dismiss the claims based on

immunity under 42 U.S.C. § 11112.

[¶22.] Dr. Hernandez’s next three issues and the eighth issue concern the

court’s dismissal of her discrimination claim against Avera on summary judgment.

She asserts that Avera discriminated against her in violation of the Family Medical

Leave Act (FMLA) and the ADA. She also claims that Avera discriminated against

her in violation of Title VII based on the NPDB report and based on her sex, age,

race, and religion.

[¶23.] Dr. Hernandez’s claim that Avera discriminated against her in

violation of the FMLA cannot survive because Dr. Hernandez never asserted a

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cause of action against Avera for a violation of the FMLA. In fact, Dr. Hernandez

indicated in her second amended complaint that she was on “medical leave that had

been approved by Defendants,” not FMLA leave. A review of the record confirms

that Dr. Hernandez was not on FMLA leave. On Avera’s personnel action report,

the box indicating leave under the FMLA was unchecked. The reason listed for

leave on that report was “Medical Leave of Absence” and the box indicating the type

of leave was “Leave of Absence.”

[¶24.] Similarly, the court properly granted summary judgment against Dr.

Hernandez’s claim that Avera discriminated against her in violation of the ADA.

Dr. Hernandez offered no evidence that she has a qualifying disability or evidence

that Avera perceived her as disabled. We further decline to review Dr. Hernandez’s

claim that Avera discriminated against her under Title VII in violation of her civil

rights in general or when it filed its report with the NPDB. Dr. Hernandez

informed the circuit court at the summary judgment hearing that she was not

moving forward on her discrimination claim based upon the NPDB report.

[¶25.] Dr. Hernandez’s seventh issue asserts the circuit court erred when it

dismissed “the wrongful termination and suspension of privileges claims before

engaging in the peer review process of Dr. Hernandez under Avera’s bylaws and

under 42 U.S.C. § 11112(a), (b), and (c).” In her brief on the issue, Dr. Hernandez

claims that she was “wrongfully fired” because Avera failed to follow the provisions

of 42 U.S.C. § 11112, and that Avera “violated her rights by suspending her

privileges and then reporting that suspension to the NPDB without giving her

notice or an opportunity to be heard.” A review of the record reveals no cause of

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action against Avera by Dr. Hernandez for wrongful termination or suspension of

privileges based on Avera’s bylaws or 42 U.S.C. § 11112(a), (b), and (c). Dr.

Hernandez claims the issue was resolved at a motions hearing, but a review of the

transcripts from the various motion hearings reveals no argument related to these

causes of action. In her reply brief, Dr. Hernandez does not identify how this claim

is before this Court. Because Dr. Hernandez never asserted this claim below, we

decline to consider it on appeal.

[¶26.] Dr. Hernandez’s last issue concerns her cause of action against Dr.

Krall. She contends that the circuit court erred when it granted a judgment as a

matter of law and dismissed her claim in the middle of trial. According to Dr.

Hernandez, “Dr. Krall admitted to not being a medical doctor, never observing

Hernandez perform surgeries, never seeing his patients after surgery to compare

before and after surgery.” She avers Dr. Krall knew Avera had malfunctioning

equipment and defective instruments, supplies, and staff. Based on this

information, she argues that the jury should have had the opportunity to consider

whether Dr. Krall knowingly gave false statements amounting to malice sufficient

to overcome his common interest privilege.

[¶27.] Dr. Krall responds that the circuit court correctly ruled that the

statements he made fell within the common interest privilege as a matter of law

because the comments were made between interested individuals. Dr. Krall also

asserts that Dr. Hernandez presented no evidence that he made the statements

with malice or in reckless disregard of the truth. Dr. Krall shared an office space

with Dr. Hernandez. She operated on at least two of Dr. Krall’s patients. Thus, in

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his view, the concerns he shared were based on his experiences and were not with

malice.

[¶28.] “If during a trial by jury a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue against that party and may

grant a motion for judgment as a matter of law against that party with respect to a

claim or defense that cannot under the controlling law be maintained or defeated

without a favorable finding on that issue.” SDCL 15-6-50(a)(1). We recently

explained that the appropriate standard of review on a court’s decision to grant or

deny a motion for a judgment as a matter of law is de novo. Magner v. Brinkman,

2016 S.D. 50, ¶ 13, 883 N.W.2d 74, 80-81.

[¶29.] Defamation under SDCL 20-11-2 includes libel and slander. Both libel

and slander require false and unprivileged communications. SDCL 20-11-3, -4. “If

a communication is ‘privileged,’ it is not actionable.” Kieser v. Se. Props., 1997 S.D.

87, ¶ 13, 566 N.W.2d 833, 837. Under SDCL 20-11-5(3):

[a] privileged communication is one made: . . . (3) In a
communication, without malice, to a person interested therein,
by one who is also interested, or by one who stands in such
relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication
innocent, or who is requested by the person interested to give
the information[.]

Here, Dr. Hernandez does not ask this Court to reverse the court’s ruling that Dr.

Krall’s communication was privileged. Once a communication is deemed privileged,

the communication between those interested persons is protected unless made with

malice. Schwaiger v. Avera Queen of Peace, 2006 S.D. 44, ¶ 9, 714 N.W.2d 874, 878.

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But “malice cannot be inferred from the defamatory communication alone.” Id.

¶ 10. The plaintiff must present evidence that the defendant “in fact entertained

serious doubts as to the truth of his publications.” Id. (quoting Petersen v. Dacy,

1996 S.D. 72, ¶ 8, 550 N.W.2d 91, 93). From our review of the record, the circuit

court did not err when it granted Dr. Krall a judgment as a matter of law. Malice

cannot be presumed, and Dr. Hernandez offered no evidence that Dr. Krall made

the statements in reckless disregard of their truth or that he entertained serious

doubts as to their truth.

[¶30.] Affirmed.

[¶31.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.

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