COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a report written by defendant concerning plaintiff-doctor’s competence was protected by the common interest qualified privilege and was the expression of pure opinion. The competence assessment was done after one of plaintiff’s patients died during surgery:

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Plaintiff, a doctor employed by defendant Kaleida Health (Kaleida), performed a surgery in which the patient died. As a result of this incident, and pursuant to Kaleida policy, plaintiff underwent a neuropsychological competence assessment by Ralph Benedict, M.D. (defendant). Defendant thereafter submitted a written report detailing his findings and opinions to both Kaleida’s internal review body and plaintiff’s personal physician. …

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“It is well settled that summary judgment is properly granted [dismissing a defamation cause of action] where a qualified privilege obtains and the plaintiff[] offer[s] an insufficient showing of actual malice” … . Here, defendant established as a matter of law that his written report and associated oral commentary were protected both by the ” common interest’ ” qualified privilege … . In opposition, plaintiff failed to raise a triable issue of fact on the issue of actual malice … .

We further agree with defendant that the court erred in denying that part of his motion with respect to the defamation causes of action on the alternative ground that the allegedly defamatory statements are expressions of pure opinion … . “Expressions of opinion . . . are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” … . Shenoy v Kaleida Health, 2018 NY Slip Op 01008, Fourth Dept  2-9-18

DEFAMATION (COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/COMMON INTEREST PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/OPINION (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/PRIVILEGE (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))/QUALIFIED PRIVILEGE  (DEFAMATION, COMPETENCE ASSESSMENT WRITTEN BY DEFENDANT CONCERNING PLAINTIFF, A DOCTOR WHOSE PATIENT DIED DURING SURGERY, WAS PROTECTED BY THE COMMON INTEREST QUALIFIED PRIVILEGE AND WAS AN EXPRESSION OF PURE OPINION (FOURTH DEPT))