Appeals Granted

BRADLEY J. CASHION, M.D. v. ROBERT S. SMITH, M.D., ET AL.
(Record Number 121797)

From the Circuit Court of the City of Roanoke; Johnathon M. Apgar, Judge.

Monica Taylor Monday, E. Scott Austin, and Peter G. Irot (Gentry Locke Rakes & Moore LLP) for Appellant.

Agnis C. Chakravorty, Frank K. Friedman, Erin B. Ashwell (Woods Rodgers PLC), and Paul G. Beers (Glenn, Feldman, Darby & Goodlatte) for Appellees.

The trial court erred in sustaining Defendants' demurrer and finding that the following statements were statements of opinion that were not defamatory as a matter of law: "He could have made it with better resuscitation"; "This was a very poor effort"; "You didn't really try"; "You gave up on him"; "You determined from the begining that he wasn't going to make it and purposefully didn't resuscitate him." These statements contain provably false statements and are not opinion.
The trial court erred in finding that Dr. Smith's statements were protected by a qualified privilege and in entering summary judgment in favor of defendants on the qualified privilege. a. The trial court erred in granting summary judgment on the qualified privilege because the issue whether the qualified privilege was lost or abused is a question of fact for the jury. b. The trial court erred in granting summary judgment because the issue whether the defamatory statements were spoken in good faith is a question of fact for the jury. c. The trial court erred in granting summary judgment because the issue whether there was malice is a question of fact for the jury.

The Circuit Court erred in denying Carilion's Motion for Summary Judgment on the ground that Dr. Smith's statements allegedly containing the words "Euthanasia" or "Euthanized" (or some derivative) were not rhetorical hyperbole as a matter of law. This is particularly true where the context of the statements and the allegations of the amended complaint made clear that the patient died of his severe injuries and where the hyperbolic statements were made in the wake of a stressful and unsuccessful surgery.

The Circuit Court erred in denying Dr. Smith's Motion for Summary Judgment on the ground that Dr. Smith's statements allegedly containing the words "Euthanasia" or "Euthanized" were not rhetorical hyperbole as a matter (sic). This is particularly true where the context of the statements and the allegations of the amended complaint made clear that the patient died of his severe injuries and where the hyperbolic statements were made in the wake of a stressful and unsuccessful surgery.

2-25-2013