Mark H. Andrew, M.D. v. Hamilton County Public Hospital d/b/a Van Diest Medical Center ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 20–0023
Submitted April 14, 2021—Filed June 4, 2021
MARK H. ANDREW,
Appellee,
vs.
HAMILTON COUNTY PUBLIC HOSPITAL d/b/a VAN DIEST MEDICAL
CENTER,
Appellant.
Appeal from the Iowa District Court for Hamilton County, James A.
McGlynn, Judge.
Defendant hospital seeks interlocutory appeal from denial of its
motion for summary judgment on defamation and wage pay claims.
REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices
joined.
David Bower (argued) and Frances M. Haas of Nyemaster Goode,
P.C., Des Moines, for appellant.
Mark W. Thomas (argued) and Laura N. Martino of Grefe & Sidney,
P.L.C., Des Moines, for appellee.
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OXLEY, Justice.
Hamilton County Public Hospital brings this application for
interlocutory appeal from the district court’s denial of its motion for partial
summary judgment concerning Dr. Mark Andrew’s defamation claim and
his Iowa Wage Payment Collection Law claim. We granted the hospital’s
application to address the defamation claim in the context of reports the
hospital made to the Iowa Board of Medicine and the National Practitioner
Data Bank. As explained below, Dr. Andrew’s defamation claim fails
because the challenged portions of the reports are nonactionable opinions.
His statutory wage claim fails because he did not perform work for which
he was not paid. We reverse the district court and remand for entry of
judgment for the hospital on both claims.
I. Background Facts and Proceedings.
Prior to the events leading to this litigation, Dr. Mark Andrew, a
general surgeon, was employed by Hamilton County Public Hospital,
operating as Van Diest Medical Center (VDMC). Dr. Andrew was hired in
2008 and had a contract with the hospital with three-year renewable
terms. Despite the three-year-term provision, the contract could be
terminated without cause upon ninety days’ notice and in some
circumstances of cause, immediately. By 2016, then-CEO Lori Rathbun
had been frustrated for some time with what she considered to be
Dr. Andrew’s overcompensation and underperformance. The hospital
leased Dr. Andrew’s services to another hospital, where he spent about
fifty percent of his time. In the year before the concerns leading to this
litigation were raised, Ms. Rathbun had also reduced Dr. Andrew’s
compensation twice because of low productivity, once in December 2015,
and again in October 2016.
3
In November 2016, a pharmacy contacted VDMC’s quality officer to
express concerns about Vicodin (hydrocodone) prescriptions one of
Dr. Andrew’s patients, T.C., was having filled. The pharmacy had
attempted to contact Dr. Andrew multiple times, and he failed to return its
messages. When a pharmacist was finally able to speak to him, the
pharmacist was dissatisfied with his responses and contacted the hospital.
The pharmacy was concerned by the large quantities prescribed and the
frequency of refills. The patient’s Prescription Monitoring Program (PMP)1
report revealed dosage changes, switches between insurance payments
and cash payments, different home addresses being used on prescriptions,
and the patient’s use of four different pharmacies to fill the prescriptions.
Each of these factors raised red flags for the pharmacy and, upon its own
investigation, for the hospital. The hospital discovered that other
pharmacies had similar concerns about T.C.’s attempts to fill prescriptions
and that one of the pharmacies listed T.C. on the Iowa Board of Pharmacy
website. The hospital initially suspected T.C. had forged prescriptions, but
a review of T.C’s medical file revealed Dr. Andrew had prescribed the large
quantity of pills.
Dr. Andrew treated T.C. over a four-year period, ultimately
performing a bilateral orchiectomy (surgical removal of the testicles) in
separate surgeries. The first was in September 2012, and the second was
in October 2016, after T.C. rescheduled the surgery multiple times.
Although chronic pain management is not generally part of a general
surgeon’s practice, Dr. Andrew prescribed approximately 11,940 Vicodin
pills to T.C., who saw Dr. Andrew every two to four weeks for a total of
1PMP is a program run by the Iowa Board of Pharmacy and provides authorized
providers and pharmacists with information regarding their patients’ use of controlled
substances.
4
ninety-seven documented visits over the four-year period. Despite T.C.
having a separate primary care physician and receiving hip replacement
and back surgery at other hospitals during this period, Dr. Andrew
continued to prescribe pain medication to him.
As part of the hospital’s internal investigation into the concerns
raised by the pharmacy, Lisa Ridge, the hospital’s chief nursing officer;
Dr. Nicole Ehn, the hospital’s medical director; and Dr. Scott Altman, an
outside consultant previously hired by the hospital to help with personnel
issues and creation of a peer review process, met with Dr. Andrew on
December 8, 2016. At the meeting, Dr. Andrew admitted T.C.’s conduct
related to filling his prescriptions was concerning, and he stated he
discharged T.C. as a patient when he recently became aware of T.C.’s
conduct the previous month. However, the notes from Dr. Andrew’s
November meeting with T.C. did not indicate he had discharged T.C. at
that time. Dr. Andrew also admitted he did not use any type of pain
management plan with T.C., nor did he refer T.C. to the on-site pain
management specialist. When asked whether, in hindsight, he would have
done anything differently, Dr. Andrew admitted he would have been more
skeptical about T.C.’s rescheduling of surgery and would probably have
used a PMP.
Following the December 8 meeting, Dr. Ehn wrote a report noting
she had remaining concerns about Dr. Andrew’s treatment of T.C.,
including the amount of narcotics prescribed, the length of time the
prescriptions covered, and Dr. Andrew’s failure to monitor the
prescriptions. She further expressed concern over Dr. Andrew’s decision
to remove T.C.’s second testicle without seeking a second opinion. Finally,
she noted the presence of “duplicate or multiple prescriptions” gave rise to
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the possibility that T.C. was “fraudulently manipulating prescriptions” or
that “the physician was providing multiple, large quantity prescriptions.”
Through the investigation related to T.C., the hospital discovered
opioid prescriptions Dr. Andrew provided to another patient, L.H., over a
two-year period that also raised concerns. Dr. Andrew performed multiple
removals of a recurring cyst on L.H.’s leg between January 2014 and June
2015. Dr. Andrew continued prescribing pain medication through June
2016. However, L.H. did not engage in the same questionable conduct as
T.C., who remained the hospital’s primary concern.
On December 15, after the hospital’s investigation was completed,
Ms. Rathbun terminated Dr. Andrew’s employment through the for-cause
provision in his contract. Specifically, Ms. Rathbun identified concerns
raised about the care Dr. Andrew provided to his patients as the reason
for his termination. Ms. Rathbun maintained Dr. Andrew’s termination
was an administrative decision, and the parties agree Dr. Andrew never
underwent a peer review process. Dr. Altman encouraged Ms. Rathbun to
subject Dr. Andrew’s treatment of T.C. to peer review, but Ms. Rathbun
preferred to terminate Dr. Andrew’s employment as an administrative
termination.
As a result of what he learned from the investigation, Dr. Altman
filed a report with the Iowa Board of Medicine (IBM). The report included
a recitation of facts surrounding the investigation of T.C.’s prescriptions,
the accuracy of which Dr. Andrew does not dispute. The report also
included responses to a number of predefined questions, and it is
Dr. Altman’s answers that form the basis of Dr. Andrew’s defamation
claim.
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One question asked, “What would you like the Iowa Board of
Medicine to do about your complaint?” Dr. Altman stated, in relevant part,
under the header “The Physician”:
Volume of narcotic prescribing appears to be well
beyond acceptable under any circumstances. It raises
questions of marked naiveté, gross incompetence, and/or
collusion with the patient for self-use, dealing, and/or
distribution. Under any of those circumstances, should this
physician’s prescribing authority be reconsidered?
Could this be an impaired physician who needs
intervention and help?
Non-emergent bilateral orchiectomy is generally not an
endeavor to be taken without significant counsel and
forethought. This case appears to vary significantly from
standard of care and raises questions of clinical competency.
Once again, is this a one-off, or fit a pattern. His surgical
competency should be reviewed. Should this physician’s
surgical privileges be limited by the State?
Under the header “Other Potential Patients,” Dr. Altman noted,
Is it possible for the Board of Medicine to query the Iowa
(and potentially other State’s) PMP by provider to see if this
situation is a one-off – or a pattern of narcotic
overprescribing? If other potentially at risk patients are
identified[,] the hospital would like to know so medical and
pain management services can be provided to those patients.
Dr. Altman filed a second report with the IBM related to L.H., reiterating
his concerns that a pattern may exist and requesting the board assess
Dr. Andrew. On April 20, 2018, the IBM released a confidential letter
finding the complaints filed by Dr. Altman did not warrant disciplinary
action.
Following Dr. Andrew’s termination, Lisa Ridge filed a report with
the National Practitioner Data Bank (NPDB), a national repository for
certain information required to be reported about health care
practitioners. The hospital believed it was required to report Dr. Andrew’s
for-cause termination. The contents of that report include only a factual
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recitation of Dr. Andrew’s treatment of T.C., and Dr. Andrew does not
dispute its accuracy. The NPDB report does not include any of the
questions raised by Dr. Altman in his report to the IBM.
Dr. Andrew sued the hospital for wrongful termination, breach of
fiduciary duty, and age discrimination, alongside defamation and libel.
The hospital removed the case to federal court, where the court granted
summary judgment in favor of the hospital on the age discrimination claim
and remanded the remaining state law claims. Dr. Andrew amended his
complaint once it was back in state court to add a claim under the Iowa
Wage Payment Collection Law (IWPCL).2
The hospital moved for partial summary judgment, seeking
dismissal of the defamation and IWPCL claims. The district court
concluded fact issues concerning whether the hospital acted with good
faith or with malice in making the IBM and NPDB reports precluded
summary judgment on the defamation claim. The district court also
denied summary judgment on the IWPCL claim, characterizing the ninety
days’ compensation Dr. Andrew would be entitled to receive under his
contract as severance pay under Iowa Code section 91A.2(7)(b) and finding
the parties’ dispute over whether Dr. Andrew was terminated for cause or
without cause created a jury question. The hospital applied for
interlocutory review, which we granted.
II. Standard of Review.
“Our review of rulings on motions for summary judgment is for
correction of errors at law.” Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa
2Dr. Andrew also asserted a defamation claim against Ms. Rathbun individually,
specifically that she “falsely spoke of and concerning Plaintiff, stating to the Iowa Board
of Medicine and the National Practitioner Data Bank that Andrew had provided
substandard or inadequate care in prescribing dispensing or administering medication.”
Ms. Rathbun passed away in February 2018, and Dr. Andrew voluntarily dismissed his
claim against her in November 2019.
8
2013). We view the record “in the light most favorable to the nonmoving
party.” Id. Summary judgment is appropriate “when there is no genuine
issue of material fact and the moving party is entitled to judgment as a
matter of law.” Id. “[S]ummary judgment ‘is afforded a unique role in
defamation cases. Judges have a responsibility to determine whether
allowing a case to go to a jury would . . . endanger first amendment
freedoms.’ ” Id. (omission in original) (quoting Jones v. Palmer Commc’ns,
Inc., 440 N.W.2d 884, 889 (Iowa 1989), overruled in part on other grounds
by Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 224 (Iowa 1998)).
III. Analysis.
The underlying breach of contract claim is still pending; this appeal
focuses on two distinct issues. The first is whether statements included
in the IBM and NPDB reports were defamatory and, if so, whether the
hospital is entitled to statutory immunity. Second, we must consider
whether Dr. Andrew’s claim under the IWPCL fails as a matter of law based
on his contract with the hospital.
A. Are the Statements in the IBM Report or the NPDB Report
Defamatory? Defamation law sits at the intersection of torts and First
Amendment rights. “The law of defamation is composed of the twin torts
of libel and slander.” Barreca v. Nickolas, 683 N.W.2d 111, 116 (Iowa
2004). “To establish a prima facie case in any defamat[ion] action, a
plaintiff must show the defendant (1) published a statement that was
(2) defamatory (3) of and concerning the plaintiff.” Bierman, 826 N.W.2d
at 464 (alteration in original) (quoting Taggart v. Drake Univ., 549 N.W.2d
796, 802 (Iowa 1996)). The hospital contends the statements were not
defamatory, so the statements are not actionable. Even if they are
actionable, the hospital asserts it is entitled to statutory immunity afforded
to authors of both reports. “Whether a statement is capable of a
9
defamatory meaning is a question for the court.” Bauer v. Brinkman, 958
N.W.2d 194, 198 (Iowa 2021).
One limit on a defamation claim is that “[o]pinion is absolutely
protected under the First Amendment.” Kiesau v. Bantz, 686 N.W.2d 164,
177 (Iowa 2004) (quoting Jones, 440 N.W.2d at 891), overruled on other
grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa
2016). Thus, if the statements Andrew complains about are opinions
rather than statements of fact that can be proved false, they are not
actionable. Whether a statement is one of fact or opinion is a “difficult
question involve[ing] important first amendment issues, [and] its
determination is one for the court.” Jones, 440 N.W.2d at 891.
In addition, some statements are protected, or privileged, despite
being libelous. Qualified privilege is an affirmative defense against a
defamation claim that requires the court to first “determine whether the
occasion of [the] statement was qualifiedly privileged” and, if it was, to then
“determine[] whether that privilege was abused.” Barreca, 683 N.W.2d at
118.
Here, that privilege takes the form of statutory immunity. Based on
Iowa Code chapter 272C, the Iowa Administrative Code directs that a
medical licensee must file a report with the IBM if the “licensee has
knowledge as defined in this rule that another person licensed by the
board may have engaged in reportable conduct.” Iowa Admin. Code r.
653—22.2(2). Reportable conduct includes
wrongful acts or omissions that are grounds for license
revocation or suspension under these rules or that otherwise
constitute negligence, careless acts or omissions that
demonstrate a licensee’s inability to practice medicine
competently, safely, or within the bounds of medical ethics,
pursuant to Iowa Code sections 272C.3(2) and 272C.4(6) and
653—Chapter 23.
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Id. r. 653—22.2(1).
The Iowa Code provides immunity for filing such reports:
A person shall not be civilly liable as a result of filing a
report or complaint with a licensing board or peer review
committee, or for the disclosure to a licensing board or its
agents or employees, whether or not pursuant to a subpoena
of records, documents, testimony, or other forms of
information which constitute privileged matter concerning a
recipient of health care services or some other person, in
connection with proceedings of a peer review committee, or in
connection with duties of a health care board.
Iowa Code § 272C.8(1)(b) (2016). This immunity is not absolute: “[S]uch
immunity from civil liability shall not apply if such act is done with malice.”
Id. Additionally, employers may not retaliate against a person because
they filed a complaint with a licensing board. Id. § 272C.8(1)(c).
The NPDB report is part of the Health Care Quality Improvement Act
of 1986 (HCQIA), which Congress enacted to improve the quality of medical
care and “facilitate the frank exchange of information among professionals
conducting peer review inquiries without the fear of reprisals in civil
lawsuits.” Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 211–
12 (4th Cir. 2002) (quoting Bryan v. James E. Holmes Reg’l Med. Ctr., 33
F.3d 1318, 1322 (11th Cir. 1994)); see also Brown v. Presbyterian
Healthcare Servs., 101 F.3d 1324, 1333 (10th Cir. 1996) (“Recognizing
‘[t]he threat of private money damage liability . . . unreasonably
discourages physicians from participating in effective professional peer
review,’ Congress deemed it essential for the legislation to provide qualified
immunity from damages actions for hospitals, doctors and others who
participate in professional peer review proceedings.” (alteration and
omission in original) (citation omitted) (quoting 42 U.S.C. § 11101(4))). The
HCQIA provides immunity for filing an NPDB report as follows: “No person
or entity . . . shall be held liable in any civil action with respect to any
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report made under this subchapter . . . without knowledge of the falsity of
the information contained in the report.” 42 U.S.C. § 11137(c) (2012).
The district court denied summary judgment on the defamation
claim by focusing on the immunity provisions and finding “that the issues
of good faith and malice are questions for the jury.” With respect to the
NPDB report, it further concluded the fact that the hospital did not provide
a peer review process for Dr. Andrew precluded its reliance on HCQIA
immunity. It reasoned that absent a peer review process, there should
never have been a report that would be subject to the immunity. The
district court did not directly address whether the statements were
defamatory or address the hospital’s argument that the challenged
statements were merely opinions rather than actionable statements of fact.
We start, and ultimately end, our analysis with the threshold issue of
whether the statements were protected opinions.
1. Preservation of the hospital’s argument that the IBM report
expressed opinions. The hospital argues that Dr. Altman’s report to the
IBM expressed his opinion, not actionable defamation. Dr. Andrew argues
the hospital did not preserve this issue for our review. “It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.” Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). This is because “[i]t is not
a sensible exercise of appellate review to analyze facts of an issue ‘without
the benefit of a full record or lower court determination[].’ ” Id. (second
alteration in original) (quoting Yee v. City of Escondido, 503 U.S. 519, 538,
112 S. Ct. 1522, 1534 (1992)).
The hospital consistently argued to the district court that the
statements were opinions and therefore not actionable. Even though the
district court did not discuss in its ruling whether the statements were
12
opinions, our review of the record, see Lamasters v. State, 821 N.W.2d 856,
863 (Iowa 2012) (“Additionally, the record fails to reveal that the
jurisdictional issue was considered by the district court through other
means.” (quoting Meier, 641 N.W.2d at 540)), reveals it considered, and
necessarily rejected, the argument.
During the hearing on the motion for partial summary judgment,
the hospital explicitly argued the statements were not actionable because
they were opinions. In response, the district court had the following
exchange with the hospital’s counsel:
THE COURT: But isn’t the question of malice something
that goes to the opinion, whether that opinion was given for
malicious reason?
MR. BOWER: Sure.
The hospital’s counsel went on to argue “that there is simply no evidence
in this record that any of those three individuals did not sincerely hold
their opinions, did not sincerely base those opinions on evidence that was
before them that is largely undisputed.” In response, the court asked,
[B]ut if plaintiff is claiming those statements are defamatory,
and I don’t know what the plaintiff’s proof is, but doesn’t
plaintiff have the right to try to submit counter-opinions
saying -- to show whether those three opinions you refer to,
whether those are or are not correct? Doesn’t that become a
fact issue? The correctness of those three opinions? He’s
claiming that they’re not.
This exchange reveals the issue was raised and decided by the district
court, and we proceed to consider whether the statements were opinions
or statements of fact.
2. The statements in the IBM report were nonactionable opinions. In
Gertz v. Robert Welch, Inc., the Supreme Court observed, “Under the First
Amendment there is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of
13
judges and juries but on the competition of other ideas.” 418 U.S. 323,
339–40, 94 S. Ct. 2997, 3007 (1974). Based on Gertz, the D.C. Circuit
created a four-factor test to “determine whether the alleged defamatory
statement was fact or opinion.” Yates v. Iowa W. Racing Ass’n, 721 N.W.2d
762, 769 (Iowa 2006) (discussing Ollman v. Evans, 750 F.2d 970 (D.C. Cir.
1984) (en banc)). We adopted this four-factor test in Jones v. Palmer
Communications, Inc., 440 N.W.2d 884, relying on the United States Court
of Appeals for the Eighth Circuit case Janklow v. Newsweek, Inc., 788 F.2d
1300, 1302 (8th Cir. 1986) (en banc). Id. at 770.
The Supreme Court subsequently clarified its opinion doctrine in
Milkovich v. Lorain J. Co., 497 U.S. 1, 110 S. Ct. 2695 (1990). Under
Milkovich, “only statements regarding matters of public concern that are
not sufficiently factual to be capable of being proven true or false and
statements that cannot reasonably be interpreted as stating actual facts
are absolutely protected under the Constitution.” Yates, 721 N.W.2d at
771.
[T]he framework of analysis is no longer whether the alleged
defamatory statement is fact or opinion. Rather the
framework of analysis now is whether the alleged defamatory
statement can reasonably be interpreted as stating actual
facts and whether those facts are capable of being proven true
or false.
Id. Therefore, “statements of opinion can be actionable if they imply a
provabl[y] false fact, or rely upon stated facts that are provably false.” Id.(quoting Moldea v. N.Y. Times Co., 22 F.3d 310, 313 (D.C. Cir. 1994)).
Because Milkovich’s framework remained quite similar to the four-factor
test we had already adopted, we continue to use that test in defamation
cases involving opinions. See id.a. Factors one and two. “The first relevant factor is whether the
alleged defamatory statement ‘has a precise core of meaning for which a
14
consensus of understanding exists or, conversely, whether the statement
is indefinite and ambiguous.’ ” Id. at 770 (quoting Ollman, 750 F.2d at
979). “We [have] characterized this factor as ‘the precision and specificity
of the disputed statement.’ ” Id. (quoting Jones, 440 N.W.2d at 891). In
other words, was Dr. Altman’s report precise and specific? The second
factor is related to the first, focusing on “the degree to which the [alleged
defamatory] statements are . . . objectively capable of proof or disproof[].”
Id. (alterations and omission in original) (quoting Ollman, 750 F.2d at 981).
The statement is likely one of fact if it is “precise and easy to verify.” Id.(quoting Jones, 440 N.W.2d at 891).
Dr. Andrew objects to two portions of Dr. Altman’s report. First, he
objects to Dr. Altman’s characterization of Dr. Andrew’s prescription
practices as excessive and his level of care as incompetent. Given the
competing experts on the issues of excessiveness and competence in the
underlying contract dispute, this issue does not qualify as one for which a
consensus of understanding exists. In other words, whether the amount
of pills prescribed was excessive or violated the standard of care is not
precise or verifiable. See id. (“In this connection, one writer has defined a
factual statement as one that relates to an event or state of affairs that
existed in the past or exists at present and is capable of being known.”).
Rather, Dr. Altman’s statements are more properly considered
characterizations of specific facts, which themselves are not false. See id.at 772–73 (“Viewing this statement in context, we first note that Ditmars’
statement was in response to Crawford’s questioning of the reasons given
for terminating the kennel’s booking contract. Ditmars set out facts (the
kennel’s ranking compared to other kennels), which signaled to a
reasonable listener that his statement ‘poor and substandard performers’
15
represented a characterization of those facts.”). The first and second
factors indicate this part of Dr. Altman’s report is an opinion.
Dr. Andrew next objects to the suggestion that the amount of
narcotics he prescribed may give rise to an inference of self-use, collusion,
or drug dealing. This statement falls closer to the line, as accusations of
criminal conduct are defamatory per se. See Barreca, 683 N.W.2d at 116;
see also Bauer, 958 N.W.2d at 199 (“An example of a defamatory statement
that is capable of precise meaning and easily verifiable is an accusation
that a person committed a crime.”). To the extent Dr. Altman was
questioning whether Dr. Andrew was dealing opioids, or colluding with his
patient to do so, that is something that could be proven as a factual matter
and it is not an indefinite or ambiguous statement. That the statements
“are in the form of questions does not change the analysis. Questions, like
opinions, can be defamatory when they imply the existence of defamatory
facts.” Nunes v. Lizza, 486 F. Supp. 3d 1267, 1284 (N.D. Iowa 2020).
While the first and second factors indicate that these statements could be
actionable defamation, “a term is not automatically categorized as an
assertion of fact because it is capable of precise meaning and verification
when read in isolation.” Bauer, 958 N.W.2d at 199. Rather, we must
consider the context of the statements under the third and fourth factors.
b. Factors three and four. “The third relevant factor is the context
in which the alleged defamatory statement occurs,” Yates, 721 N.W.2d at
770, which we have described as the “literary context,” Jones, 440 N.W.2d
at 891. “The degree to which a statement is laden with factual content or
can be read to imply facts depends upon . . . the whole discussion.” Yates,
721 N.W.2d at 770 (citation omitted). We consider the statement as “part
of a whole, including the tone of the broadcast and the use of cautionary
language.” Jones, 440 N.W.2d at 892 (citing Janklow, 788 F.2d at 1302).
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“The last relevant factor is ‘the broader social context into which the
[alleged defamatory] statement fits.’ ” Yates, 721 N.W.2d at 770 (alteration
in original) (quoting Ollman, 750 F.2d at 983). This factor considers “the
types of writing or speech in which the statement appears.” Id. We have
“characterized this factor as ‘the social context,’ and noted that this factor
‘focuses on the category of publication, its style of writing and intended
audience.’ ” Id. (quoting Jones, 440 N.W.2d at 891–92).
In short, the third factor is “narrowly linguistic,” and the fourth
factor is “broadly social.” Id. (quoting Ollman, 750 F.2d at 982). Here,
both the narrow and the broad context indicate all of Dr. Altman’s
statements are nonactionable opinions.
First, the narrow literary context of Dr. Altman’s statements
indicates he was expressing concerns he thought might require further
investigation, not accusing Dr. Andrew of engaging in improper conduct.
He reported facts, which Dr. Andrew admits were true, and then raised
potential concerns using cautionary language that directly related to those
facts. Specifically, he used qualified language, saying that the volume of
pills “appears” to be beyond acceptable levels and stating the undisputed
facts “raise[] questions” ranging from naiveté to collusion for drug-dealing.
With respect to Dr. Andrew’s surgical decisions, Dr. Altman used similar
cautionary language revealing an expression of opinion, not a statement
of fact, stating: “This case appears to vary significantly from standard of
care and raises questions of clinical competency.” (Emphasis added.)
Read in context, Dr. Altman raised a concern he thought the IBM should
investigate further; he did not state he believed Dr. Andrew dealt drugs or
engaged in malpractice. Put another way, what he wrote in the IBM report
was his opinion that specific undisputed facts raised concerns the board
should investigate. To this extent, his characterization is like the
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statement in Yates where the defendant disclosed “the facts underlying his
statement of ‘substandard and poor performers,’ facts that [the plaintiff]
conceded were true,” such that “[a] reasonable reader could conclude that
[the defendant] was giving his personal conclusion or opinion about those
undisputed facts.” 721 N.W.2d at 773; see also Phantom Touring, Inc. v.
Affiliated Publ’ns, 953 F.2d 724, 729–31, 731 n.13 (1st Cir. 1992) (holding
that newspaper articles accusing touring company of deliberately
deceiving the public by attempting to pass off its musical comedy as a
Broadway show of same name was not actionable defamation where
factually accurate information, coupled with context and tenor of article,
led “inevitably to the conclusion that no reasonable reader could interpret
[the journalist’s] statements as factual assertions of dishonesty” as
opposed to his own view of the company’s actions).
Turning to the broader social context, Dr. Altman raised concerns
in a report to a medical licensing board. Such reports are confidential,
mandatory in some cases, and serve the important purpose of notifying
the board that a physician may be placing the public at risk. The statutory
scheme requires physicians to make a report if they have information that
a physician licensed by the IBM “may have engaged in reportable conduct.”
Iowa Admin. Code r. 653.22—2(2). It also allows physicians to raise
concerns without fear that they will be personally liable if those concerns
turn out to be unfounded after investigation, see Iowa Code § 272C.8(1)(b),
and prohibits employers from retaliating against a person who files a
report with the board, see id. § 272C.8(1)(c).
Protecting explanatory statements made in the context of a report to
the IBM provides a strong policy justification for recognizing Dr. Altman’s
concerns as nondefamatory opinion rather than actionable assertions of
fact. See Vranos v. Franklin Med. Ctr., 862 N.E.2d 11, 18 (Mass. 2007)
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(“[The confidentiality of Massachusetts’ peer review process] express[es]
the Legislature’s considered judgment that the quality of health care is
best promoted by favoring candor in the medical peer review process.”).
Dr. Andrew does not dispute the factual portions of Dr. Altman’s report,
arguing only that Dr. Altman should have stopped with the recitation of
facts and not provided his view of the concerns raised by those facts. But
this argument ignores the context in which the statements were made.
See Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 48–49 (Iowa
2018) (“[G]iven the dialogue between the Church and the plaintiffs as to
whether the women were ‘victims’ or ‘sinners,’ the context of [a church
elder’s] statement [(“Unless . . . he was holding a knife to her throat, it
wasn’t rape.”)] supports a finding that he was expressing his subjective
belief about the plaintiffs’ status as victims, rather than communicating a
verifiable fact.” (omission in original)).
The narrow literary and the broad social contexts establish that
Dr. Altman’s report contained only nonactionable opinions. The statutory
scheme requires disclosure of information in the confidential setting of
reports to the IBM, the purpose of which is to protect the public and the
medical profession. Dr. Altman recited specific facts, undisputed by
Dr. Andrew, to support his concerns, which he expressed using cautionary
language. Protecting physicians’ ability to identify the concerns raised by
specific information they are required to report is a significant public good
that supports precluding a defamation action here. Given the context in
which Dr. Altman’s concerns were raised, his views did not “impl[y] a
provably false fact[] or rel[y] upon stated facts that are provably false.”
Yates, 721 N.W.2d at 772.
The district court denied summary judgment on the basis that
issues of good faith and malice, required to establish the hospital’s
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statutory immunity, are jury questions. But the proper sequence of
addressing a defamation claim begins with first determining whether a
statement is capable of defamatory meaning, which includes considering
whether the challenged statement is a nonactionable opinion. Only if a
statement is potentially defamatory does statutory immunity come into
play. The challenged statements in Dr. Altman’s reports to the IBM reflect
his opinions about the concerns raised by the undisputed facts and
therefore are not actionable as defamation.
3. The statements in the NPDB report were not defamatory.
Dr. Andrew also asserts that the hospital defamed him in the NPDB report
filed by Lisa Ridge. Unlike the IBM report, the statements Ms. Ridge made
in the NPDB report included only a factually-accurate recitation of the
incident that led to the hospital’s investigation of Dr. Andrew’s prescribing
activities. Proving defamation requires proving falsity, see Bierman, 826
N.W.2d at 463–64, and Dr. Andrew has identified no false statement in the
NPDB report.
Dr. Andrew defends the denial of summary judgment based on the
district court’s conclusion that the hospital’s failure to provide Dr. Andrew
with a peer review process could raise a fact issue with respect to the
hospital’s ability to assert statutory immunity under the HCQIA. See 42
U.S.C. § 11137(c) (“No person or entity . . . shall be held liable in any civil
action with respect to any report made under this subchapter . . . without
knowledge of the falsity of the information contained in the report.”).
Because Dr. Andrew does not allege any part of the NPDB report is false,
the report is not defamatory as a matter of law, and there is no need to
reach the hospital’s immunity defense. Dr. Andrew’s defamation claim
based on the NPDB report fails.
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B. Whether Dr. Andrew’s IWPCL Claim Fails as a Matter of Law
Based on His Contract with the Hospital. Dr. Andrew amended his
complaint after this case returned to state court to add a claim under the
IWPCL. Iowa Code chapter 91A permits an employee to bring a cause of
action to collect wages, which it defines as including
compensation owed by an employer for:
a. Labor or services rendered by an employee, whether
determined on a time, task, piece, commission, or other basis
of calculation.
b. Vacation, holiday, sick leave, and severance
payments which are due an employee under an agreement
with the employer or under a policy of the employer.
Iowa Code § 91A.2(7).
Dr. Andrew’s contract with VDMC allowed the hospital to terminate
his employment without cause on ninety days’ notice. Under that
provision, the hospital could relieve Dr. Andrew of his duties immediately,
but Dr. Andrew remained eligible for employee benefit plans and would
receive his compensation during the ninety-day period. Dr. Andrew argues
that if the jury finds the hospital lacked cause to terminate his contract
immediately—the basis of his breach of contract claim that remains
pending—and finds the hospital would have used the without-cause
provision instead, the ninety days’ compensation he should have received
would amount to wages or severance pay, and the hospital’s failure to pay
that compensation violated chapter 91A.
In McClure v. International Livestock Improvement Services Corp., we
rejected a nearly identical claim under the IWPCL. 369 N.W.2d 801,
802–03, 805 (Iowa 1985). An employee’s contract included a without-
cause provision requiring thirty days’ notice prior to termination under the
IWPCL. Id. at 802. The district court concluded the employer lacked
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cause, so the employee was entitled to thirty days of compensation under
the IWPCL. Id. at 803. We observed that “[t]he general tenor of the [IWPCL]
is the regulation of the payment of wages which have been earned.” Id.(emphasis added). Claims under the IWPCL “involved accrued as
distinguished from as yet unearned pay.” Id. Where the amount McClure
requested was “not for services ‘rendered’ but for damages,” it did not fit
into the IWPCL. Id. at 804. The same is true here. Dr. Andrew did not
work during the ninety-day period he claims he was entitled to
compensation. His claim is for contract damages, not for wages for
services rendered.
In rejecting McClure’s claim for severance pay, we explained:
“Severance payments” . . . are considerably different
from an item of damage predicated on breach of contract for
failing to give a specified notice of termination. A severance
payment is an amount which is granted at contract
termination on account of past services, and is usually
calculated on the basis of the length of those services.
Id. at 804–05. Additionally, we observed that
a typical severance pay clause would have operated thus: the
employer would give the thirty-day notice, the employee would
work the thirty days, and at the end of that period the
employee would receive his wages for the thirty days plus a
lump sum calculated under the severance pay clause on the
basis of years of service.
Id. at 805. Dr. Andrew urges us to ignore this discussion as dicta.
As in McClure, in this case “[w]e do not have a severance pay clause
. . . [; w]e have a notice of termination clause.” Id. If it applies, the
provision would compensate Dr. Andrew for not working during the ninety-
day notice period rather than pay him for services rendered or compensate
him for prior years of service. As in McClure, “[t]he result is that
[Dr. Andrew] does not have a Wage Law claim[; h]e has a common-law
cause of action for damages” under his breach of contract claim, id. He is
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free to argue VDMC would have terminated him under the provision
allowing him to cease working but still receive compensation as part of
that claim. The IWPCL claim fails as a matter of law.
IV. Conclusion.
We reverse the judgment of the district court and remand with
instructions to enter summary judgment in favor of the hospital on
count III for defamation and count V for a wage law violation.
REVERSED AND REMANDED.