Feyz v. Mercy Memorial Hospital
Feyz v. Mercy Memorial Hospital
Opinion of the Court
Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital. This lawsuit arises from an internecine dispute over nursing orders
Plaintiffs challenge of the peer review conducted by some of the defendants and the resulting disciplinary action taken against him requires that we consider the scope of immunity provided for peer review. In order to promote effective patient care in hospitals, the Legislature enacted MCL 331.531, commonly referred to as Michigan’s peer review immunity statute. The purpose of statutory peer review immunity is to foster the free exchange of information in investigations of hospital practices and practitioners, and thereby reduce patient mortality and improve patient care within hospitals. The Legislature obviously intended to protect peer review participants from liability for participation in this communicative and evaluative process. In order to create an environment in which such candid explorations of the quality of hospital patient care can occur, among other protections, the Legislature prohibited the discovery of communications made within the peer review process and granted immunity from liability to all who participate in peer review without “malice.”
The primary question posed in this appeal is the scope of judicial review of peer review permitted under MCL 331.531. A secondary question is whether the judicially created “doctrine of nonintervention” — a doctrine suggesting that staffing decisions of private hospitals are generally beyond the scope of judicial review — is compatible with the peer review immunity statute. Finally, we must also construe the undefined peer review statutory term “malice.”
Accordingly, we vacate the judgment of the Court of Appeals and remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Plaintiff is a physician with staff privileges at defendant Mercy Memorial Hospital.
Defendants disapproved plaintiffs standing orders, and instructed the nursing staff to ignore them. In several cases where the nurses disregarded plaintiffs special orders and followed defendant hospital’s nursing directives, plaintiff prepared “incident reports” referring such cases to peer review committees for investigation of “potential medical errors.” Further, plaintiff began making notations in patient records that
Defendants initiated peer review proceedings against plaintiff based on plaintiffs failure to complete medical records
Plaintiff alleges that he ceased writing his standard orders because, in compromise, defendant hospital gave plaintiff use of the pharmacy consult service to implement plaintiffs special orders. It appears that plaintiffs orders regarding patient medication overburdened the staff of the pharmacy consult service, so the hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed placing his specialized orders in patients’ medical charts. As a consequence, defendants took further action and placed plaintiff on indefinite probation. Plaintiff continues to practice medicine and retains privileges at defendant hospital, but is restricted from using defendant hospital’s pharmacy consult service or insisting on compliance with his special orders.
The Court of Appeals, in a split decision, partially reversed the trial court’s award of summary disposition in favor of defendants,
The Court of Appeals dissent agreed that an unlawful act of discrimination constituted malice,
This Court granted defendants’ application for leave to appeal.
STANDARD OF REVIEW
The trial court granted defendants summary disposition under MCR 2.116(C)(8). A trial court’s grant of summary disposition is reviewed de novo.
Questions of statutory interpretation, such as the proper construction of the peer review immunity statute, are reviewed de novo.
ANALYSIS
In Michigan, the Legislature has commanded hospitals to establish peer review committees to review “professional practices” in order to “redue[e] morbidity and mortality and improv[e] the care provided in the hospital for patients.”
The judicial nonintervention doctrine is a judicially created common-law doctrine providing that courts will not intervene in a private hospital’s staffing decisions. The concerns that gave rise to this doctrine are twofold. The doctrine is premised, in part, on the distinction between public and private hospitals. While public hospitals are state actors impheating adherence to constitutional requirements, such as affording due process to physicians, private hospitals are not similarly constrained because they are not state actors.
The doctrine is also founded on the belief that courts are ill-equipped to review hospital staffing decisions because courts lack the specialized knowledge and skills required to adjudicate hospital staffing disputes. The judicial nonintervention doctrine, therefore, is a prudential doctrine not grounded in statutoiy or constitutional provisions that courts have invoked to resist adjudicating claims involving hospital staffing decisions and the decision-making process.
In Shulman v Washington Hosp Ctr,
Judicial tribunals are not equipped to review the action of hospital authorities in selecting or refusing to appoint members of medical staffs, declining to renew appointments previously made, or excluding physicians or surgeons from hospital facilities. The authorities of a hospital necessarily and naturally endeavor to their utmost to serve in the best possible manner the sick and the afflicted who knock at their door. Not all professional men, be they physicians, lawyers, or members of other professions, are of identical ability, competence, or experience, or of equal reliability, character, and standards of ethics. The mere fact that a person is admitted or licensed to practice his profession does not justify any inference beyond the conclusion that he has met the minimum requirements and possesses the minimum qualifications for that purpose. Necessarily hospitals endeavor to secure the most competent and experienced staff for their patients. Without regard to the absence of any legal liability, the hospital in admitting a physician or surgeon to its facilities extends a moral imprimatur to him in the eyes of the public. Moreover not all professional men have a personality that enables them to work in harmony with others, and to inspire confidence in their fellows and in patients. These factors are of importance and here, too, there is room for selection. In matters such as these the courts are not in a position to substitute their judgment for that of professional groups.
Relying on Shulman, the Michigan Court of Appeals adopted the doctrine of judicial nonintervention in Hoffman v Garden City Hosp.
In subsequent cases, the Court of Appeals relied on, as well as expanded, the judicial nonintervention doctrine set forth in Hoffman.
More recently, in Long v Chelsea Community Hosp,
is limited to disputes that are contractual in nature. We decline to articulate a broad principle that a private hospital’s staffing decisions may never be judicially reviewed. Indeed, in doing so, we reiterate the proposition from Sarin that, under some circumstances, a court may consider a hospital’s decisions without violating the nonintervention principle. Private hospitals do not have carte blanche to violate the public policy of our state as contained in its laws. Had plaintiff in this case asserted that defendants violated state or federal law, we may have chosen to review his claim. In this case, however, plaintiff did not assert a violation of civil rights or a violation of a state statute.[41 ]
Long confined the scope of the judicial nonintervention doctrine to disputes arising out of those decisions that are “contractual in nature.”
In this case, the Court of Appeals majority largely abandoned the Hoffman rule that a private hospital’s staffing decisions are simply not subject to judicial review. Instead, it concluded that the judicial nonintervention doctrine only stood for the “modest proposition that a private hospital is subject only to the legal
While Court of Appeals panels have utilized variants of the doctrine of nonintervention for some years, this Court has never recognized or adopted the doctrine. Defendants urge this Court to adopt the doctrine and hold that the trial court properly dismissed plaintiffs nonstatutory claims because those claims require a review of the hospital’s staffing decisions and the methods employed in reaching those decisions. We decline to do so because this judicially created nonintervention doctrine is inconsistent with the statutory regime governing the peer review process enacted by the Legislature.
The statutorily prescribed scope of judicial review over the peer review process is very narrow. The Legislature codified limited judicial review of the peer review process, permitting judicial review only when peer review participants act with malice.
B. PEER REVIEW IMMUNITY
Peer review is “ ‘ “essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care.” ’ ”
However, peer review immunity is not absolute. A person, organization, or entity that has acted with
The proper definition of “malice” for purposes of peer review immunity is an issue of first impression in this Court. Over the years, Court of Appeals panels have employed several divergent definitions. For instance, in Veldhuis v Allan, supra, the Court of Appeals adopted the defamation definition of “actual malice.”
In this case, the Court of Appeals majority and dissent each adopted a different definition of “malice.” The majority quoted Black’s Law Dictionary (5th ed) for the proposition that “ ‘[mjalice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.’ ”
Defendants contend that the defamation definition of “malice” utilized in Veldhuis v Allan is the appropriate standard for defining malice under MCL 331.531. We agree.
The proper definition of “malice” for purposes of the exception to peer review immunity must be gleaned
Under the “malice” definition used by the Feyz Court of Appeals majority, every potential invasion of a physician’s legal rights committed during peer review, regardless of the triviality of the act or the absence of knowledge of the inaccuracy of the information relied upon, would abrogate immunity. Such a definition of
C. HOSPITAL STAFFING DECISIONS ARE NOT IMMUNE FROM LIABILITY
Our lower courts have made broad use of the now-repudiated nonintervention doctrine that provided, in some formulations, blanket immunity for any staffing decision associated with peer review. We believe that the widespread use of this doctrine has caused some confusion concerning the relationship between the immunity granted to participants in the peer review process and the nature of liability imposed on the actual decision maker in hospital staffing questions, namely, the hospital itself. As stated, decisions such as Hoffman, Sarin, and Long applied the common-law immunity provided by the nonintervention doctrine to hospitals without regard to the fact that the statute itself grants immunity only to enumerated peer review participants and their communications. Hospitals are not similarly covered by the peer review statute. It appears that judicial reliance on the sweeping nonintervention doctrine obviated the necessity of examining whether a hospital, as decision maker, was entitled to the immunity provided by the statute.
In this case, defendants clearly assume and argue that an expansive construction of the peer review immunity statute will insulate the hospital defendant from liability. Contrarily, the Court of Appeals majority and dissent sought to construe the peer review immunity statute in a way to avoid insulating the hospital
Because of the confusion on this point illustrated by the published peer review Court of Appeals cases, we take this opportunity to clarify that the peer review immunity statute extends only to the communications made, and the participants who make them, in the peer review process, not to the hospital that makes the ultimate decision on staffing credential questions.
Our conclusion is rooted in the language of the immunity statute itself. Nothing in the peer review immunity statute suggests that it applies to any person or entity except those involved in the communicative concern of gathering data and evaluating hospital medical practices, as well as those who publish peer review information for the listed proper statutory purposes. It does not apply to the hospital decision maker that might rely upon the work product of a peer review committee. Moreover, MCL 333.21513(a) and (c) designate that the hospital is the statutory decision maker concerning staffing privileges. In other words, the peer review process may assemble and assess data about a physician’s competence, and it may even make a recom
Thus, the hospital does not fit within the protections afforded by the peer review immunity statute when it makes the ultimate staffing decision. Consequently, if the defendant hospital here is covered by one or more of the several state and federal civil rights acts plaintiff has sued under, and if staffing privileges are an activity protected from discrimination by such state and federal acts, then the hospital is required to defend its decision.
CONCLUSION
We repudiate the doctrine of judicial nonintervention because it is inconsistent with the statutory peer review process established in MCL 331.531. Furthermore, we hold that malice exists when a person supplying information or data to a peer review entity does so with knowledge of its falsity or with reckless disregard of its truth or falsity. Similarly, a peer review entity is not immune from liability if it acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, of information or data that it communicates or upon which it acts. Although this definition originated in the context of defamation, this definition is uniquely appropriate to Michigan’s peer review scheme, as peer review immunity is based on the communication of informa
Accordingly, the judgment of the Court of Appeals is vacated, and we remand this case to the Monroe Circuit Court for further proceedings consistent with this opinion.
164 Mich App 131; 416 NW2d 347 (1987).
Id. at 136-137 (citation omitted).
Because this case was dismissed pursuant to MCR 2.116(C)(8), all material facts are taken from plaintiffs complaint.
According to plaintiffs complaint, the individual defendants hold various administrative positions at defendant hospital. Defendant Medi
According to plaintiffs complaint, plaintiffs standing orders required nurses to do the following:
A. Have the family bring in home medications.
B. Ask the patient (if alert) if the containers belong to the medications. If not, send the container(s) to the pharmacy for identification.
C. Ask the patient to look at his/her medications inside the container and tell how he/she has been taking them at home.
D. List the dose and frequency of medications taken on the nursing assessment form as the patient is actually taking them at home.
Plaintiff admits that he refused to comply with hospital policy requiring physicians to sign transcriptions of their verbal orders.
Because this case was decided on motion solely on the basis of plaintiffs pleadings, it is not clear whether the ad hoc investigatory committee and the executive committee were duly authorized “peer review” entities. It is not necessary to the resolution of this appeal that we determine their status. We therefore express no opinion on this issue.
See MCL 333.16223.
MCL 37.1101 et seq.
42 USC 12101 et seq.
29 USC 794.
264 Mich App 699; 692 NW2d 416 (2005). The Court of Appeals affirmed the dismissal of plaintiffs breach of fiduciary duty claim against all defendants on the basis of the nonintervention doctrine, because such a claim went to the heart of the majority’s interpretation of the doctrine — that private hospitals are not subject to greater judicial scrutiny than any other private entity. Furthermore, the Court of Appeals affirmed summary disposition of plaintiffs nonstatutory claims against the members of the ad hoc committee, to the extent those claims were based on the actions of the ad hoc committee while acting in its role as a peer review committee. Plaintiff did not appeal these adverse holdings, and they are not before us.
Id. at 704. The Court of Appeals majority used the following definition of malice: “ ‘Malice in law is not necessarily personal hate or ill
The dissent relied in part on the following legal definition of “malice”: “ ‘The intent, without justification or excuse, to commit a wrongful act.’ ” Feyz, supra at 728 (Murray, PJ., concurring in part and dissenting in part), quoting Black’s Law Dictionary (7th ed). The dissent agreed with the majority that MCL 331.531 would not bar valid discrimination claims. However, somewhat inconsistently, the dissent criticized the majority’s abandonment of the defamation definition of malice, adopted in Veldhuis, supra, and stated that the majority offered no justification or explanation for the abandonment.
Although unstated, given the dissent’s preferred definition of malice, it appears that its rejection of a per se application of discriminatory claims as an exception to peer review immunity derives from the fact that not all discriminatory claims require proof of intent. See, e.g., Raytheon Co v Hernandez, 540 US 44, 52-53; 124 S Ct 513; 157 L Ed 2d 357 (2003).
474 Mich 957 (2005).
Wickens v Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 (2001).
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589 (2006).
Grimes v Dep’t of Transportation, 475 Mich 72; 715 NW2d 275 (2006).
Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005).
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1999).
MCL 8.3a.
MCL 333.21513 provides, in pertinent part:
The owner, operator, and governing body of a hospital licensed under this article:
(d) Shall assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.
See Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985). “Hospitals are required to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality of care. Included
Derderian v Genesys Health Care Sys, 263 Mich App 364, 376-377; 689 NW2d 145 (2004), lv den 474 Mich 955 (2005).
See ¿d. The judicial nonintervention doctrine does not deprive a court of subject-matter jurisdiction as some Court of Appeals panels have erroneously concluded. Id. at 377 n 5, citing Veldhuis v Central Michigan Community Hosp, 142 Mich App 243; 369 NW2d 478 (1985), and Bhogaonker v Metro Hosp, 164 Mich App 563; 417 NW2d 501 (1987). Rather, the doctrine is one of self-restraint where courts decline to exercise jurisdiction.
222 F Supp 59, 64 (D DC, 1963).
115 Mich App 773; 321 NW2d 810 (1982).
See Greisman v Newcomb Hosp, 40 NJ 389; 192 A2d 817 (1963).
Id. at 778, 779, citing Shulman, supra.
See Regualos v Community Hosp, 140 Mich App 455, 460-461; 364 NW2d 723 (1985); Veldhuis Central Michigan Community Hosp, supra; Dutka v Sinai Hosp of Detroit, 143 Mich App 170; 371 NW2d 901 (1985); Bhogaonker, supra.
176 Mich App 790, 793-794; 440 NW2d 80 (1989).
Id. at 794, quoting Veldhuis v Central Michigan Community Hosp, supra at 247.
219 Mich App 578; 557 NW2d 157 (1997). The issue in Long was whether MCL 331.531 created a private cause of action for malice. The Court of Appeals concluded that the statute created no such private cause of action. The Court also dismissed the plaintiffs breach of contract claim on the basis of the judicial nonintervention doctrine.
Long, supra at 586-587 (citation omitted).
Id.; see MCR 7.215(J)(1).
MCL 331.531. However, as the Court of Appeals stated in Long, supra, MCL 331.531 does not create a private cause of action for malice. Malice is an exception to peer review immunity. Once a defendant has stated sufficient facts constituting peer review immunity, MCR 2.111(F)(3), a plaintiff has to put forward sufficient evidence of malice to
MCL 331.531(2) specifically delineates which groups qualify as “review entities” entitled to peer review immunity. While a duly appointed peer review committee of a hospital is a designated review entity under MCL 331.531(2)(a)(iii), the hospital is not. Therefore, the hospital cannot take advantage of the immunity granted under MCL 331.531(3)(b), which grants immunity only to review entities for acts or communications within their scope.
See, e.g., Sarin, supra at 795.
People v McIntire, 461 Mich 147, 153; 599 NW2d 102 (1999), quoting the dissenting opinion of Young, EJ., in the Court of Appeals in that case quoting Cady v Detroit, 289 Mich 499, 509; 286 NW 805 (1939). See also Beaudrie, supra at 140, where this Court refused to expand the judicially created public duty doctrine because such an expansion would have undermined the public policy choice of the Legislature, as expressed in the governmental tort liability act, which allows public employees to be subject to tort liability in limited circumstances.
We note that the Legislature provided for the qualified immunity found in MCL 331.531 in 1975, seven years before the Court of Appeals adopted the judicial nonintervention doctrine.
Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 42; 594 NW2d 455 (1999), quoting Attorney General, supra at 169, quoting Bredice v Doctors Hosp, Inc, 50 FRD 249, 250 (D DC, 1970), aff'd without opinion 156 US App DC 199; 479 F2d 920 (1973).
MCL 333.21515, MCL 333.20175(8), and MCL 331.533. Peer review records have thus been fully protected from disclosure even to the Attorney General when conducting a criminal investigation. Attorney General, supra at 168-170; In re Investigation of Lieberman, 250 Mich App 381; 646 NW2d 199 (2002). Moreover, these nondisclosure protections apply regardless of the nature of the claim asserted by the party seeking the records. Manzo v Petrella & Petrella & Assoc, PC, 261 Mich App 705, 715; 683 NW2d 699 (2004).
MCL 331.531 provides in pertinent part:
(1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider.
(2) As used in this section, “review entity” means 1 of the following:
(a) A duly appointed peer review committee of 1 of the following:
(iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260.
(3) A person, organization, or entity is not civilly or criminally liable:
(a) For providing information or data pursuant to subsection (1).
(b) For an act or communication within its scope as a review entity.
*682 (c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3.
(4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice.
MCL 331.531(2)(a)(mJ. As noted earlier, hospitals themselves are not listed protected review entities.
MCL 331.532 provides that the release or publication of peer review records, reports, findings, and conclusions shall be only for the following purposes: (1) advancing health care research or education, (2) maintaining the standards of health care professions, (3) protecting the financial integrity of any govemmentally funded program, (4) providing evidence relating to the ethics or discipline of a health care provider, entity, or practitioner, (5) reviewing the qualifications, competence, and performance of a health care professional with respect to the selection and appointment of the professional to a health facility’s medical staff, and (6) complying with § 20175 of the Public Health Code, MCL 333.20175.
MCL 331.533 provides that “the record of a proceeding and the reports, findings, and conclusions of a review entity and data collected by or for a review entity ... are confidential, are not public records, and are not discoverable and shall not be used as evidence in a civil action or administrative proceeding." (Emphasis added.)
MCL 331.531(4). The immunity provided under MCL 331.531 is separate and distinct from the immunity provided by MCL 333.16244 for a person who acts in good faith in making a report to the HPRE MCL 333.16244 establishes a presumption that a person who makes such a report acted in good faith. This reporting immunity is not predicated on participation in peer review.
MCL 8.3a.
See New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 2d 686 (1964); J & J Constr Co v Bricklayers & Allied Craftsmen, 468 Mich 722, 731; 664 NW2d 728 (2003); Lins v Evening News Ass’n, 129 Mich App 419; 342 NW2d 573 (1983). It bears noting that the peer review immunity statute was amended to include the malice exception to immunity after the seminal New York Times v Sullivan case was decided. It is fair to say that Sullivan made a seismic change in the law concerning defamatory communications.
Veldhuis v Allan, supra at 136-137 (citation omitted).
Justice CAVANAGH concludes, largely by referencing a legal dictionary, that the Legislature intended a different definition of “malice” than we adopt today. Indeed, as the dissent correctly contends, reference to dictionaries may be “helpful” in ascertaining legislative intent. Post at 692, citing Ford Motor Co v Woodhaven, 475 Mich 425; 716 NW2d 247 (2006). However, because a word can have many different meanings depending on the context in which it is used, and because dictionaries frequently contain multiple definitions of a given word, in light of this fact, it is important to determine the most pertinent definition of a word in light of its context. See, e.g., Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998). That the definition of “malice” we adopt today has been termed “actual malice” is not dispositive. We readily
Sun Valley Foods, supra at 236.
Id. at 237, quoting Bailey v United States, supra at 145.
We note that MCL 331.531(3)(b) provides immunity to a review entity for all non-malicious acts or communications within its scope as a review entity. Indeed, it is difficult to conceive of an “act” that a properly functioning hospital peer review entity could perform that is not communicative in nature. The gathering and evaluating of information, as well as making recommendations based on that evaluation, are indeed “acts.” But these “acts” certainly also have a fundamental communicative aspect. Indeed, these acts are so inherently communicative that were a peer review entity to perform them in such a manner as to interfere with the purpose of keeping physicians focused on performing honest and candid peer review — to distort the peer review process without regard to the truth or falsity of the information it gathers or uses — such actions would also necessarily be communicative in nature and subject to the malice standard we adopt today. Moreover, if a hospital peer review entity were performing non-communicative, non-evaluative “acts” — namely acts that do not advance the goal of the statute to improve delivery of hospital care — such “acts” are arguably not afforded immunity because they presumably would not be within the scope of the hospital peer review entity’s function.
It is noteworthy that the Legislature chose the unusual term “malice” rather than a more common term such as “intent” as an exception to the immunity granted. As stated, we believe that this is because the focus of the peer review process narrowly concerns communications and the defamation definition of “malice” is inexorably tied to communications. Equally significant, this definition became widely known following the publication of New York Times v Sullivan, supra.
This is especially true because any disciplinary action taken against the physician on the basis of peer review findings would have to be disclosed upon request to any other hospital from which the physician is seeking staff privileges, credentials, or employment. See MCL 331.531(6) and MCL 333.20175(6).
It is also important to note that, until the decision in this case, none of the published peer review immunity statute cases involved a civil rights claim or an existing statutory claim. See, e.g., Long, supra; Veldhuis v Allan, supra; Regualos, supra. Indeed, as noted in footnote 40, at least one case involved an effort to create an independent cause of action for malice based on the peer review immunity statute itself.
As stated earlier, this case was decided on motion. The merits of plaintiffs statutory claims have not been decided. We express no opinion on the validity of any of plaintiffs claims.
Concurring in Part
(concurring in part and dissenting in part). I concur with many of the results reached by the majority opinion. Specifically, I agree that, because MCL 331.531
Notably, the Legislature did not define “malice” in MCL 331.531. Like the majority, I agree that “malice” is a term that has acquired a peculiar and appropriate meaning in the law. Therefore, this Court must construe the term “malice” according to its peculiar and appropriate legal meaning. Ford Motor Co v Woodhaven, 475 Mich 425; 716 NW2d 247 (2006); MCL 8.3a. Thus, because “malice” is a legal term, resort to a legal dictionary is helpful. Ford Motor Co, supra at 440. Reference to a legal dictionary confirms that “malice” is defined as follows: “The intent, without justification or excuse, to commit a wrongful act” or “[rjeckless disregard of the law or of a person’s legal rights.” Black’s Law Dictionary (7th ed).
Simply stated, the Legislature used the term “malice,” not “actual malice.” As noted by this Court in J & J Constr Co v Bricklayers & Allied Craftsmen, 468 Mich 722, 731; 664 NW2d 728 (2003):
Under long-settled constitutional principles concerning the First Amendment rights of freedom of speech and freedom of the press, a public-ñgure plaintiff must establish that a defendant made defamatory statements with “actual malice” in order to prevail in a defamation action. New York Times[ Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964)] (establishing the “actual malice” standard for liability for defamation of public officials); Curtis Publishing Co v Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 (1967) (extending the “actual malice” standard to public figures). “Actual malice” exists when the defendant knowingly makes a false statement or makes a false statement in reckless disregard of the truth. [Emphasis added.]
Further, and as noted earlier, Black’s Law Dictionary (7th ed) defines “actual malice” in the context of defamation as “Knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true.” Accordingly, reference to a legal dictionary and this Court’s case law confirms that the term “actual malice” pertains in defamation law. And be
Additionally, interpreting “malice” as “actual malice” in accordance with defamation law would read the term “act” out of MCL 331.531. MCL 331.531 provides that immunity will be provided for “an act or communication within its scope as a review entity” as long as the person, organization, or entity does not act with malice. Accordingly, it appears as if the Legislature had a broader understanding of immunity under MCL 331.531 than that contemplated by the majority. In other words, while the defamation definition of “actual malice” might arguably be warranted if MCL 331.531 used that term and the statute dealt only with a communication, the legal definition of “malice” must apply because MCL 331.531 specifically deals with “act[s] or communication[s].”
Further, I am also unpersuaded by the majority’s theory that the defamation law definition of “actual malice” must pertain to MCL 331.531 because the Legislature amended the statute to include a malice exception sometime after New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), was decided. The Legislature added the malice exception roughly 11 years after Sullivan, and the majority has not pointed to any other evidence apart from an 11-year gap suggesting that the amendment was a direct response to Sullivan, particularly where Sullivan uses the term “actual malice” and MCL 331.531 does not. Nor am I persuaded by the majority’s rationale that “act,” as used in MCL 331.531, must have a “fundamental communicative aspect” and that any act that is “non-communicative, non-evaluative” is outside
In sum, I agree with the majority’s decision to remand this case to the circuit court. On remand, however, I would instead direct the circuit court to apply the legal definition of the term “malice” because there is no indication in MCL 331.531 that the Legislature intended any other meaning.
MCL 331.531 provides in relevant part:
(1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider.
(3) A person, organization, or entity is not civilly or criminally hable:
(a) For providing information or data pursuant to subsection (1).
(b) For an act or communication within its scope as a review entity.
(c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3.
*692 (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice.
Notably, the Court of Appeals majority concluded that “ ‘[mjalice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.’ ” 264 Mich App 699, 704-705; 692 NW2d 416 (2005), quoting Black’s Law Dictionary (5th ed). Further, the Court of Appeals partial dissent would have applied the defamation definition of “malice.” Id. at 726-727 (Murray, BJ., concurring in part and dissenting in part).
Significantly, “actual malice” is defined as “1. The deliberate intent to commit an injury, as evidenced by external circumstances .... 2. Defamation. Knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true.” Black’s Law Dictionary (7th ed), p 968.
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