France v. St. Clare's Hospital & Health Center

OPINION OF THE COURT Sullivan, J. Plaintiff sues for libel, alleging that in a letter to a third party St. Clare’s Hospital falsely stated that he was afflicted with venereal disease, as a result of which he suffered emotional stress, disruption of his ten-year relationship with his girlfriend, and sexual impotence. The facts are not in dispute and may be briefly stated. On February 3, 1977, plaintiff, at the request of Leonard Jeffries, a co-worker, donated blood at St. Clare’s for the benefit of Jeffries’ brother. Blood was drawn and, as is required, thereafter subjected to a series of routine tests, including the Venereal Disease of Research Laboratory (VDRL) test, designed to detect syphilis. Plaintiff’s blood sample reacted positively to the VDRL test, and use of his blood was therefore prohibited under New York City Department of Health regulations. Unable to reach plaintiff directly, James Kim,1 the supervisor of the Department of Anatomic and Clinical Pathology at St. Clare’s, sent the allegedly defamatory letter, dated February 17, 1977, to Jeffries which, insofar as relevant, stated as follows: “Joe France has a blood disease that prevents us from using his blood for any patient due to the danger of transmitting the disease to a patient. May we suggest that he visit his private physician or go to the Department of Health for a test for VDRL.” Kim’s purpose in writing was both to inform Jeffries — 3 — that since plaintiff’s blood could not be used he would have to find another donor, and also to notify plaintiff, through Jeffries, of the need for additional blood tests to determine the precise nature of the irregularity which the blood tests had disclosed. After receiving the letter, Jeffries telephoned plaintiff, informed him of its contents, and thereafter delivered the letter to him. Plaintiff subsequently voluntarily disclosed the contents of the letter to the woman with whom he had been living for the past 10 years. Subsequent followup tests indicated that plaintiff was not suffering from syphilis or any other venereal disease. Plaintiff claims that the letter was defamatory in that it falsely attributed a venereal disease to him. He alleges that suspicions over the origin or such a disease, and the recriminations which followed, caused a coolness to develop between him and his girlfriend, as a result of which he began to suffer from periods of sexual impotence. No claim is made, however, that Jeffries divulged the contents of the letter to anyone other than plaintiff, or that Kim discussed the letter with anyone besides Jeffries. Unable to show that his standing in the community has been in any way diminished or otherwise affected by the supposedly defamatory communication, plaintiff, claiming a libel per se, relies upon presumed damage to his reputation. He does not allege special damages and has not sought medical attention to treat his claimed emotional trauma and impotence. Thus, he has not suffered any out-of-pocket loss by reason of the alleged libel. When plaintiff moved for summary judgment striking the answer, St. Clare’s cross-moved for like relief dismissing the complaint on the grounds that the purportedly defamatory statement (1) was not libelous; (2) was protected by a qualified privilege which could be overcome only by proof of malice, which proof plaintiff had failed to introduce; and (3) had not caused injury to plaintiff. Special Term denied both motions. Only St. Clare’s has appealed. We would reverse, grant St. Clare’s motion for summary judgment, and dismiss the complaint. Irrespective of whether the common-law distinction between libel and slander—that in the former damage is — 4 — presumed,2 while in the latter, with the exception of certain types of defamation, actual damage had to be proved3— ever had any validity in this State’s jurisprudence (see Hinsdale v Orange County Pub., 17 NY2d 284; O’Connell v Press Pub. Co., 214 NY 352; Sydney v Macfadden Newspaper Pub. Corp., 242 NY 208), it is clear that New York followed the common-law rule that any publication of a false imputation of a venereal disease was actionable without the necessity of alleging or proving any actual damage. (Williams v Holdredge, 22 Barb 396; Hewit v Mason, 24 How Prac 366.) The publication was considered defamatory per se because loathsome diseases such as venereal disease were regarded as incurable, with ostracism from society the inevitable result. (See Prosser, Torts [4th ed], pp 756-757.) Recent decisions interpreting the First Amendment, however, have drastically changed the law of defamation, eliminating the common-law doctrine of strict liability as well as the correlative principle of presumed damages. Absent proof of harm to his reputation a plaintiff now may not recover on a claim of a defamation unless, of course, he can prove malice. In Gertz v Robert Welch, Inc. (418 US 323, 349) the Supreme Court limited recovery in defamation cases where plaintiffs are unable to establish “knowledge of falsity or reckless disregard for the truth” to compensation for actual injury. The court found that “the States have no substantial interest in securing for plaintiffs * * * gratuitous awards of money damages far in excess of any actual injury.” (Supra, at p 349.) Thus, it reasoned, First Amendment considerations dictate “that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved.” (Supra, at p 349.) This court has itself recently affirmed that “[t]he law restricts compensation to ‘actual injury’ and does not permit a presumption of damaged reputation unless it can be shown that publication was with ‘knowledge of falsity or reckless disregard for the truth.’ ” (Salomone v MacMillan — 5 — Pub. Co., 77 AD2d 501, 502, citing Gertz v Robert Welch, Inc., supra; see, also, Moran v Hearst Corp., 40 NY2d 1071, 1072 [concurring opn of Fuchsberg, J.].) St. Clare’s has not been shown to have acted with a reckless disregard for the truth and, indeed, plaintiff concedes that Kim did not act with malice in sending the allegedly libelous letter. The hospital performed blood tests on six volunteers whom Jeffries brought to it to donate blood. After the tests, two of the potential donors were rejected. One was plaintiff, whose blood showed positive signs pf disease. The hospital was put on notice by the tes(;s that plaintiff might be the carrier of veneral disease. Thus, its communication to Jeffries was made not with a conscious disregard for the truth, but as a result of a scientific test, and any award for defamation must, of necessity, be limited to compensation for actual damages. While conceding that under Gertz (418 US 323, supra) in the absence of malice, the State’s interest in protecting a defamed person’s reputation reaches no further than compensation for actual injury, the dissent would, never- - theless, deny summary judgment because the issue of actual damages “cannot be determined” on such a motion. But to find an issue on damage in the face of the utter lack of proof in this record of actual injury to plaintiff’s reputation is to ignore the holding of Gertz. Without proof of any actual injury plaintiff is left to argue that where, as here, the statement is defamatory per se he need not allege or prove special damages. But this precise principle was rejected by the Supreme Court in Gertz, and this court in Salomone (supra). Recognizing that the record is barren of any evidence whatsoever tending to show that his reputation in the community was in any way diminished by publication of the alleged defamatory letter, plaintiff attempts to shift the focus of his claim away from loss of reputation and, instead, seeks recovery for purported emotional trauma and periods of sexual impotence with his girlfriend. Thus, by naked allegations of libel, per se, plaintiff attempts to bootstrap claims for emotional distress. These claims are not compensable, however, since such damages are recoverable in a defamation action only when concomitant with a loss — 6 — of reputation. We believe that our holding in Salomone (77 AD2d 501, supra) is dispositive. There, as here, the plaintiff suing for libel, claimed damages for loss of reputation and, for embarrassment and anguish. We noted (p 502): “Without doubt, plaintiff has suffered embarrassment and anguish. We must, nonetheless, dismiss his complaint because he has suffered no damages that are compensable in law. Plaintiff pleads no special damage. He concedes that he has sustained no financial loss or physical damage attributable to appellants’ publication. He claims damages for loss of reputation and for mental anguish. He has been unable to come forth with any proof of loss of reputation because he knows of no one who believes he was a child molester or thinks less of him due to the publication. The law restricts compensation to ‘actual injury’ and does not permit a presumption of damaged reputation unless it can be shown that publication was with ‘knowledge of falsity or reckless disregard for the truth’ (Gertz v Robert Welch, Inc., 418 US 323, 349). Plaintiff has provided no „ such evidence and appellants’ evidence is to the contrary. As to the claim for mental anguish, it has long been held in this State that such damage is compensable only when it is concomitant with loss of reputation (Terwilliger v Wands, 17 NY 54; Wilson v Goit, 17 NY 442). While the United States Supreme Court, in Gertz, would appear to have allowed the States sufficient latitude to include in the definition of ‘actual injury’ mental anguish unaccompanied by loss of reputation, this has not occurred in this State.” Since plaintiff cannot show actual damage to his reputation as a result of publication of the allegedly libelous letter, and since none may be presumed, the complaint must be dismissed. In view of this determination we need not reach the other contentions raised on appeal. Plaintiff requests that he be permitted to amend the complaint to assert a cause of action for injurious falsehood. Not having been raised at Special Term, this issue is not properly before us. (Chase Manhattan Bank, N. A. v Marcovitz, 56 AD2d 763.) Moreover, the essence of this tort is the “infliction of intentional harm”. (See Penn-Ohio Steel Corp. v Allis Chalmers Mfg. Co., 74 AD2d 441, 444.) As al — 7 — ready noted, plaintiff concedes that Kim acted without malice. Nor does anything in this record support the conclusion that Kim acted recklessly or without regard to the consequences in publishing the alleged defamatory letter. Accordingly, the order, Supreme Court, New York County (Evans, J.), entered September 9, 1980, denying the motion of defendant St. Clare’s Hospital for summary judgment dismissing the complaint should be reversed, on the law, without costs and disbursements, and the motion granted. Footnotes [1] Although named as a defendant the action against Kim was dismissed for lack of personal jurisdiction, from which determination no appeal has been taken. [2] See Thorley v Lord Kerry (4 Taunt 355, 128 Eng Rep 367). [3] See King v Lake (Hardves Rep 470, 145 Eng Rep 552).