Bruce L. Davidson, M.d. v. Robb W. Glenny, M.d., Et Ano. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
BRUCE L. DAVIDSON, M.D., a ) No. 80062-1-I
single person, )
)
Appellant, )
)
v. )
)
ROBB W. GLENNY, M.D., individually, ) PUBLISHED OPINION
and SHAWN J. SKERRETT, M.D., )
individually, )
)
Respondents. )
)
VERELLEN, J. — Government officials may be shielded from individual
liability by absolute privilege when a compelling need shows immunity is required
to properly carry out the duties they have the authority to fulfill. The limited record
at this stage of the proceedings shows Dr. Robb Glenny and Dr. Shawn Skerrett
had authority to make only recommendations about reappointing Dr. Bruce
Davidson. They had no authority to act, so no compelling need supports an
absolute privilege. No Washington case has conferred an absolute privilege upon
a government employee with such limited authority.
Although RCW 28B.10.648 confers a conditional statutory immunity upon
individual faculty members who participate in peer reviews in good faith, Davidson
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alleges his former colleagues acted in bad faith. Davidson alleged facts sufficient
to survive a motion for judgment on the pleadings.
Therefore, we reverse the trial court’s judgment on the pleadings in favor of
Drs. Glenny and Skerrett.
FACTS
As alleged,1 the University of Washington (UW) School of Medicine chose
not to renew the annual appointment of Dr. Bruce Davidson, a long-time volunteer
clinical professor at Harborview Medical Center, following a faculty meeting to
discuss reappointments. During that meeting, Dr. Robb Glenny and Dr. Shawn
Skerrett told the faculty about allegations against Davidson of poor patient care
and violations of professional boundaries even though they knew the allegations
had been investigated and determined to be unfounded. The faculty chose not to
renew Davidson’s appointment because of their statements. Davidson sued
Glenny and Skerrett for defamation, false light, and negligence. Glenny and
Skerrett moved for judgment on the pleadings and attached portions of the UW
Faculty Code as well as their biographies from the university’s website. The court
considered the motion, including the attached materials, concluded Glenny and
1 Because this appeal is from a CR 12(c) motion for judgment on the pleadings,
all facts are taken from Davidson’s complaint, except where otherwise noted. When
reviewing a dismissal granted under CR 12(c), facts alleged in the complaint are
assumed to be true. Washington Trucking Ass’n v. State Emp’t Sec. Dep’t, 188 Wn.2d
198, 207, 393 P.3d 761 (2017) (citing FutureSelect Portfolio Mgmt., Inc. v. Tremont
Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014); P.E. Sys., LLC v. CPI
Corp., 176 Wn.2d 198, 211, 289 P.3d 638 (2012)).
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Skerrett were shielded by an absolute privilege, and dismissed Davidson’s
complaint.
Davidson appeals.
ANALYSIS
As a threshold matter, Davidson contends the court erred by considering
materials outside the pleadings.
Generally, when considering a CR 12(c) motion for judgment on the
pleadings, a trial court may consider only the factual allegations contained in the
complaint.2 But when a complaint alleges the contents of documents and does not
attach them to the complaint, a court may consider those documents as well. 3
Because Davidson’s complaint quotes at length from the UW Faculty Code, albeit
without quotation marks,4 the court could consider it. And although the complaint
does not refer to the website biographies of either Glenny or Skerrett, Davidson
conceded to the trial court that any consideration of their biographies was
2 LaRose v. King County, 8 Wn. App. 2d 90, 103, 437 P.3d 701 (2019) (citing
Jackson v. Quality Loan Serv. Corp. of Wash., 186 Wn. App. 838, 844, 347 P.3d 487(2015)); see Washington Trucking, 188 Wn.2d at 207 (“‘We treat a CR 12(c)
motion . . . identically to a CR 12(b)(6) motion.’”) (alternation in original) (quoting P.E.
Sys., 176 Wn.2d at 203).
3 McAfee v. Select Portfolio Servicing, Inc., 193 Wn. App. 220, 226, 370 P.3d 25(2016) (citing Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 726, 189 P.3d 168(2008)).
4 Compare Clerk’s Papers (CP) at 8 (complaint) with CP at 36 (UW Faculty
Code).
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harmless.5 Davidson does not show he was prejudiced by the court’s
consideration of either the UW Faculty Code or the respondents’ biographies.
We review a CR 12(c) dismissal de novo.6 At this stage, a court should
dismiss a complaint “‘only when it appears beyond doubt’ that the plaintiff cannot
prove any set of facts that ‘would justify recovery.’”7 We review the existence of a
privilege de novo as a question of law.8
Davidson argues the court erred by concluding Glenny and Skerrett
possessed an absolute common law privilege shielding their communications
during the faculty meeting discussing his reappointment. The trial court relied
solely on their possession of an absolute privilege to dismiss Davidson’s
complaint. No one argued and the trial court did not address any statutory
immunity. Glenny and Skerrett contend they were shielded by absolute privilege
as supervisors evaluating Davidson’s work.9
5 See CP at 107 (noting in his motion for the court to not consider the
documents that “Defendants’ biographies do little more than confirm their status as
inferior state officers.”).
6 Washington Trucking, 188 Wn.2d at 207 (citing FutureSelect, 180 Wn.2d at
962; P.E. Sys., 176 Wn.2d at 203).
7Id. (quoting San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157
P.3d 831 (2007); P.E. Sys., 176 Wn.2d at 210).
8Liberty Bank of Seattle, Inc. v. Henderson, 75 Wn. App. 546, 563, 878 P.2d
1259 (1994) (citing RESTATEMENT (SECOND) OF TORTS § 619(1) cmt. a).
9See Resp’t’s Br. at 11-13 (arguing absolute privilege applies because
respondents were fulfilling evaluative duties).
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First, we consider the common law absolute privilege. An absolute privilege
can shield a government official from any liability. 10 The “extraordinary breadth of
an absolute privilege” limits it to “cases in which the public service and
administration of justice” require it.11 The privilege exists for pragmatic reasons: if
government officials feared their acts could expose them to civil suits, even if the
acts were authorized by law, “[i]t would seriously cripple the proper and effective
administration of public affairs as [e]ntrusted to the executive branch of
government.”12 This pragmatic need is balanced against an individual’s right to be
free of defamatory attacks.13 An official’s rank alone does not decide whether their
acts are shielded by absolute privilege.14
It is not the title of his office but the duties with which the particular
officer sought to be made to respond in damages is entrusted—the
relation of the act complained of to ‘matters committed by law to his
control or supervision,’—which must provide the guide in delineating
10 Bender v. City of Seattle, 99 Wn.2d 582, 600, 664 P.2d 492 (1983) (citing
McNeal v. Allen, 95 Wn.2d 265, 267, 621 P.2d 1285 (1980); Gold Seal Chinchillas,
Inc. v. State, 69 Wn.2d 828, 830, 420 P.2d 698 (1966)).
11 Id.12 Spalding v. Vilas, 161 U.S. 483, 498, 16 S. Ct. 631, 637, 40 L. Ed. 780(1896).
13
Liberty Bank, 75 Wn. App. at 566-67 (citing Engelmohr v. Bache, 66 Wn.2d
103, 104, 401 P.2d 346 (1965)).
14See Barr v. Matteo, 360 U.S. 564, 572-73, 79 S. Ct. 1335, 3 L. Ed. 2d 1434(1959) (reasoning absolute privilege can extend to “officers of lower rank in the
executive hierarchy”); see also Liberty Bank, 75 Wn. App. at 564 (noting “‘[a] good
number of States . . . have extended the absolute privilege to state officers of various
ranks below that of cabinet level” (alteration in original) (quoting RESTATEMENT
(SECOND) OF TORTS § 591 cmt. c)).
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the scope of the rule which clothes the official acts of the executive
officer with immunity from civil defamation suits.[15]
A defendant advocating for an absolute privilege must first establish they
had the authority to carry out the allegedly injurious acts.16 Next, the defendant
must show there is a compelling public policy justification for an absolute privilege
by balancing the scope of the official’s authority, the pragmatic need for the
official’s acts to be shielded, and the plaintiff’s right to be free from injury.17
Glenny and Skerrett argue statutes governing UW and the UW Faculty
Code confer hiring authority upon them as members of the UW faculty.
RCW 28B.20.130(2) grants the Board of Regents authority to employ “members of
the faculty, and employees of the institution, who . . . shall hold their positions
during the pleasure of said board of regents.” Glenny and Skerrett do not show
any statute directly conferring authority upon UW clinical or teaching faculty to
make employment decisions regarding other faculty.18 Although RCW 28B.10.528
15 Barr, 360 U.S. at 573-74 (quoting Spalding, 161 U.S. at 498).
See Spalding, 161 U.S. at 499 (“But if [an official] acts, having authority, his
16
conduct cannot be made the foundation of a suit against him personally for
damages.”).
17 See Bender, 99 Wn.2d at 600 (“some compelling public policy justification” is
necessary to justify an absolute privilege); Twelker v. Shannon & Wilson, Inc., 88
Wn.2d 473, 479, 564 P.2d 1131 (1977) (citing Ward v. Painters’ Local Union 300, 41
Wn.2d 859, 252 P.2d 253 (1953)) (defendant has the burden of establishing existence
of a privilege).
18 Glenny and Skerrett argue RCW 28B.20.200 granted them authority to make
employment decisions, but that statute is silent about hiring. RCW 28B.20.200 grants
faculty authority only for “immediate government of the institution under such rules as
may be proscribed by the board of regents.” The statute authorizes self-governance
decisions by UW faculty only to the extent allowed by the UW Board of Regents.
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No. 80062-1-I/7
grants the Board of Regents the ability to delegate its authority, Glenny and
Skerrett fail to show it delegated hiring authority to them through the UW Faculty
Code.
Section 24-51 of the Faculty Code provides “[t]he President and the
appropriate college or school faculty share responsibility for recommending faculty
appointments to the Regents,” so “[t]he appropriate faculty, therefore, . . . shall
provide the Regents, through the President, with the information needed for a wise
decision.”19 Section 24-53 of the Faculty Code explains the procedure for renewal
of nontenure faculty appointments:
A. The voting members of the appropriate
department . . . shall decide whether to recommend renewal or
termination of the appointment. . . . The voting faculty of an
academic unit may, by majority vote, delegate authority to
recommend the renewal of affiliate or clinical faculty. . . .
....
B. If this recommendation is a departmental one, the chair
shall transmit it to the dean. If the chair does not concur in the
recommendation he or she may also submit a separate
recommendation.[20]
The Board of Regents retained its statutory authority to make actual hiring
decisions and did not delegate it to teaching and clinical faculty.21 Because an
19 CP at 78 (emphasis added).
20 CP at 79-80 (emphasis added).
21
We note Glenny and Skerrett agree that faculty committees make only
reappointment recommendations, which do not become decisions “until they get to the
[Board of] Regents.” July 22, 2020 oral argument, 15:00-15:20,
http://www.courts.wa.gov/content/OralArgAudio/a01/20200722/2.%20Davidson%20v.
%20Glenny%20%20%20800621.mp3.
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No. 80062-1-I/8
absolute privilege depends upon a government official acting within their
authority,22 and Glenny and Skerrett fail to show they had authority to act, they are
outside the scope of government employees whose acts may be shielded by an
absolute privilege.23
Even if making a recommendation was an exercise of authority, Glenny and
Skerrett do not show a compelling public policy justification for expanding the
scope of absolute privilege.24 Historically, an absolute privilege has been
extended to three general areas: (1) judicial proceedings, (2) legislative
proceedings, and (3) acts of state by important government officials.25 Here, we
are not concerned with judicial or legislative proceedings. The history of the
doctrine regarding executive officials illustrates its limited scope.
22 Spalding, 161 U.S. at 498-99.
23 Glenny and Skerrett cite Oda v. State, 111 Wn. App. 79, 100-01, 44 P.3d 8(2002), to illustrate that hiring and retention are “carried out primarily at the
departmental level.” Resp’t’s Br. at 2. But Oda cuts against their position because it
too notes UW faculty make hiring recommendations only, and the university is not
bound by them. See 111 Wn. App. at 101 (noting a UW provost accepts hiring
“recommendation[s] from the local faculty level in more than 95 percent of cases”).
Their reliance on section 28-32 in the Faculty Code is also misplaced. That section
allows a faculty member aggrieved by an “injustice” to petition for review of a decision
by “any persons acting on behalf of the University in an administrative capacity and
affecting” employment. CP at 36. Glenny and Skerrett could act on UW’s behalf by
evaluating Davidson even though they lacked the authority to retain him.
24
See Bender, 99 Wn.2d at 600 (a compelling public policy justification is
necessary for an absolute privilege to apply).
25 Engelmohr, 66 Wn.2d at 104-05.
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Spalding v. Vilas, a federal Supreme Court decision from 1896, was the
earliest case conferring an absolute privilege on an executive branch official.26 An
attorney filed claims against the Postmaster General, who was then a Cabinet
officer, for lost business and harm to his reputation.27 The attorney alleged he was
injured by a letter sent by the Postmaster General to thousands of postal
employees regarding pay raises granted by an act of Congress.28 The Court
concluded an absolute privilege shielded the Postmaster General’s
communication.29 Because he had the duty to implement the pay raise, “he was
entitled to express his opinion” about the law’s purpose and function “and to
indicate what, in his judgment, was necessary” for postal employees to receive
their increased pay.30 The Court limited this protection to “action having more or
less connection with the general matters committed by law to his control or
supervision.”31
In the 1959 case of Barr v. Matteo, the Court considered whether absolute
privilege protected an appointed executive branch official below the cabinet level. 32
26 161 U.S. 482, 493, 16 S. Ct. 631, 40 L. Ed. 780 (1896) (noting whether an
executive branch officer is shielded by absolute privilege “has not . . . been the subject
of judicial determination”)
27 Id. at 484.
28 Id. at 485-86
29 Id. at 498.
30 Id. at 491.
31 Id. at 498.
32 360 U.S. 564, 565, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959).
9
No. 80062-1-I/10
Two former employees of the Office of Rent Stabilization sued its acting director
for defamation after he distributed a press release naming them and stating they
were terminated for approving a plan that “violated the spirit of the” law. 33 The
plan had been unpopular in Congress and the press.34 The Court concluded the
acting head enjoyed an absolute privilege against liability from the press release.35
Because the acting director had been delegated statutory duties, he had the
discretion to publicly address matters that had been discussed in Congress and
the press relating directly to his duties.36
Seven years later, in Gold Seal Chinchillas, Inc. v. State, our Supreme
Court considered whether absolute privilege shielded “the Attorney General and
his staff” from liability for an allegedly defamatory press release.37 Staff members
from the Consumer Protection Division of the Attorney General’s Office (AGO)
filed a complaint against chinchilla farmers for violating the Consumer Protection
Act,38 and that same day, distributed a press release naming the defendants and
quoting from the complaint.39 The chinchilla farmers sued for defamation. Citing
Spalding, the court determined that for an absolute privilege to apply, the allegedly
33 Id. at 567 n.5.
34 Id. at 566-67.
35 Id. at 574.
36 Id. at 574-75.
37 69 Wn.2d 828, 829-30, 420 P.2d 698 (1966).
38 Ch. 19.86 RCW.
39 Gold Seal, 69 Wn.2d at 829.
10
No. 80062-1-I/11
injurious statement must “have some relation to the general matters committed by
law to the control or supervision of the particular state official.”40 Because the
attorney general had a statutory duty to enforce the Consumer Protection Act and
an implied duty as an elected official to inform the public of his conduct, an
absolute privilege shielded these acts.41 And because the attorney general carried
out these duties through AGO employees, the attorney general’s absolute privilege
extended to the conduct of those employees.42
No Washington decision has held every employee in the executive branch
is shielded by absolute privilege whenever they act within their authority. The
Gold Seal court held the elected, cabinet-level attorney general and his staff were
shielded by absolute privilege when fulfilling the attorney general’s duties.43 In
Stidham v. State Department of Licensing, the court concluded statements and
acts by two political appointees, the director and assistant director of the
Department of Licensing, could not be the basis for liability because both were
shielded by an absolute privilege.44 And in Liberty Bank of Seattle, Inc. v.
40 Id. at 834 (citing Spalding, 161 U.S. at 498).
41 Id. at 833-34.
42Id. at 834 (“[S]tate officials, acting through the members of their staffs, are
absolutely privileged with respect to the content of their oral pronouncements or
written publications.”).
43 Id.
44 30 Wn. App. 611, 615, 637 P.2d 970 (1981); see RCW 43.24.016(1) (granting
the director authority to “supervise and administer” the department and to “advise the
governor and legislature” about the department); RCW 43.24.016(2)(c) (empowering
the director of the Department of Licensing to appoint assistant directors and
exempting the assistant director from the state civil service law, chapter 41.06 RCW).
11
No. 80062-1-I/12
Henderson, this court concluded an appointed state banking official and a lower-
level statutory appointee acting on the official’s behalf had absolute immunity
against a defamation claim.45
An official’s rank alone does not decide whether their conduct is shielded by
absolute privilege.46 But a higher-ranking official will more likely need an absolute
privilege to exercise their discretion when acting within the scope of their
wide-ranging statutory duties.47 Glenny and Skerrett are ordinary government
employees, not appointed or elected officials, and do not show they had important
public policy matters within their control or supervision. Even accepting their
contentions about hiring, they had limited authority over a few people to decide a
routine matter.48 They allegedly defamed Davidson when participating in a
meeting before a departmental vote.49 Even if the vote had important practical
implications, their votes were only two out of all those cast. Although the director
45 75 Wn. App. 546, 567, 878 P.2d 1259 (1994).
46 See Barr, 360 U.S. at 572-73 (reasoning absolute privilege can extend to
“officers of lower rank in the executive hierarchy”); see also Liberty Bank, 75 Wn. App.
at 564 (noting “‘[a] good number of the [s]tates . . . have extended the absolute
privilege to state officers of various ranks below that of cabinet level’”) (first alteration
in original) (quoting RESTATEMENT (SECOND) OF TORTS § 591 cmt. c (1977)).
47See Barr, 360 U.S. at 573 (department heads are more likely to be shielded
by absolute privilege “because the higher the post, the broader the range of
responsibilities and duties, and the wider the scope of discretion it entails”).
48 See Resp’t’s Br. at 11-12 (contending they had authority to “determine who
will teach” within the Division of Pulmonary and Critical Care Medicine).
49CP at 7 (complaint alleging defamation occurred at a division faculty meeting
to consider reappointments); CP at 80 (Section 24-53 of the Faculty Code explaining
departmental faculty vote on reappointment of nontenure faculty).
12
No. 80062-1-I/13
of a statewide department requires freedom to discuss her employees to manage
her department as she sees fit,50 Glenny and Skerrett fail to show the
“extraordinary breadth of an absolute privilege” is necessary to exercise their
limited authority. Because the trial court relied upon Glenny and Skerrett
possessing an absolute privilege to dismiss Davidson’s suit, it erred.
Now we turn to the question of statutory immunity. The parties did not
address RCW 28B.10.648(1) in their briefs, and we asked them to come to oral
argument to discuss whether the immunity it grants is inconsistent with an
absolute privilege for individuals who make written or oral statements in support of
or against a person being reviewed for a higher education position. Glenny and
Skerrett contend they qualify for the common law absolute privilege regardless of
RCW 28B.10.648(1).51
Davidson agrees some form of privilege applies, but it is only a conditional
statutory privilege conferred by RCW 28B.10.648(1). He contends dismissal on
the pleadings was inappropriate because he alleged Glenny and Skerrett acted in
bad faith.52 The question is whether the statute applies here and, if so, whether
Davidson alleged facts sufficient to survive a CR 12(c) motion for judgment on the
pleadings.
50 Stidham, 30 Wn. App. at 614-15.
51 July 22, 2020 oral argument, 10:30-11:50, http://www.courts.wa.gov/
content/OralArgAudio/a01/20200722/2.%20Davidson%20v.%20Glenny%20%20%208
00621.mp3.
52 Id. at 1:20-1:50, 3:20-4:30.
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We interpret statutes to carry out the intent of the legislature.53 We
determine its intent by considering the text of the statute and related statutes.54 If
the plain meaning of the statute is clear, then we do not resort to tools of statutory
construction, and we give effect to the statute’s plain meaning as an expression of
legislative intent.55 Because statutory privileges are generally considered to be in
derogation of the common law, they must be strictly construed.56
RCW 28B.10.648(1) confers immunity from civil suits upon all employees of
“institutions of higher learning serving on peer review committees which
recommend or decide on appointment [or] reappointment . . . for employees of the
institution” so long as their performance on the committee was in good faith. The
same provision also shields “[i]ndividuals who provide written or oral statements in
support of or against a person reviewed . . . if their statements are made in good
faith.”57 This conditional statutory immunity is like a qualified privilege.58 By
53Magney v. Truc Pham, No. 96669-9, slip op. at 7 (Wash. July 2, 2020),
http://www.courts.wa.gov/opinions/pdf/966699.pdf (quoting Swinomish Indian Tribal
Cmty. v. Dep’t of Ecology, 178 Wn.2d 571, 581, 311 P.3d 6 (2013)).
54Id. (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43
P.3d 4 (2002)).
55 Id. (quoting Campbell & Gwinn, 146 Wn.2d at 9-10).
56Id. Neither party has argued Glenny and Skerrett’s communications would be
shielded by a qualified privilege under the common law. Thus, we assume, without
deciding, that the conditional privilege granted by RCW 28B.10.648(1) is in derogation
of the common law.
57 RCW 28B.10.648(1).
58 See McNamara v. Koehler, 5 Wn. App. 2d 708, 715, 429 P.3d 6 (2018)
(explaining an absolute privilege shields a speaker from “all liability,” whereas a
qualified privilege can be lost if abused) (citing Bender, 99 Wn.2d at 600), review
denied, 192 Wn.2d 1021, 433 P.3d 816 (2019); see also Bender, 99 Wn.2d at 601-02
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No. 80062-1-I/15
conferring only a conditional immunity upon faculty in hiring committees, the
legislature implicitly rejected the possibility of an absolute privilege for the same
conduct.59 If Davidson was a statutory employee and Glenny and Skerrett were
serving on a “peer review committee” to decide on his reappointment, then only
the conditional immunity in this statute could apply.
Davidson worked at Harborview Medical Center as an unpaid volunteer
clinical professor. He worked one afternoon each week to see patients with
fellows, residents, and medical students. During his 14 years as a volunteer at
Harborview, he supervised more than 4,000 patient visits. Chapter 28B.10 RCW
does not define “employee,” but it was well-established when RCW 28B.10.648(1)
was enacted that an unpaid volunteer could be a statutory employee. “[W]here
one volunteers or agrees to assist another, to do something for the other’s benefit,
or to submit himself to the control of the other . . . then the service may be
rendered within the scope of [an employer-employee] relationship.”60 Because
(qualified privilege is abused when the speaker acted with “knowledge or reckless
disregard as to the falsity of a statement”) (citing cases).
59 Cf. Magney, slip op. at 8 (“In interpreting a statute we must keep in mind the
interpretive canon expressio unis est exclusion alterius, i.e., ‘[w]here a statute
specifically designates the things or classes of things upon which it operates, an
inference arises in law that all things or classes of things omitted from it were
intentionally omitted by the legislature.’”) (quoting Wash. Nat. Gas Co. v. Pub. Util.
Dist. No. 1 of Snohomish County, 77 Wn.2d 94, 98, 459 P.2d 633 (1969)).
60Baxter v. Morningside, Inc., 10 Wn. App. 893, 896-97, 521 P.2d 946 (1974);
see LAWS OF 1984, ch. 137, § 1 (enacting RCW 28B.10.648); see also Fed. Home
Loan Bank of Seattle v. Credit Suisse Sec. (USA) LLC, 194 Wn.2d 253, 289, 449 P.3d
1019 (2019) (“We presume that the legislature is aware of published appellate court
decisions.”).
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Davidson provided benefits to UW with its consent and was subject to its
regulations in the Faculty Code, we conclude he was a statutory employee for
purposes of RCW 28B.10.648(1).
The statute also does not define the phrase “peer review committee” nor
the individual words in that phrase. When a statute does not define a term, we
can turn to a standard dictionary.61 A “committee” is a group of “persons
delegated to consider, investigate, or take action upon . . . some matter or
business.”62 A “peer” is any person “belonging to the same group in society,
especially when membership is determined by age, grade, or status.”63 And to
“review” is “to go over with critical examination in order to discover excellences or
defects.”64 Thus, in RCW 28B.10.648(1), a “peer review committee” is a group of
persons belonging to the same group in society who are joined to consider another
peer by critically examining that peer’s excellences and defects.
61 Cornu-Labat v. Hosp. Dist. No. 2 Grant County, 177 Wn.2d 221, 231, 298
P.3d 741 (2013) (quoting State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002)).
We note that the Cornu-Labat court also relied on the dictionary to define the phrase
“peer review committee” when interpreting an exception to the Public Records Act,
RCW 42.56.360(1)(c). Id. at 230-33. To define the phrase, the court looked to the
dictionary before relying upon RCW 7.71.030(1) and RCW 7.70.020 to determine
whether a nonphysician could be part of a “peer review committee” under
RCW 4.24.250. Id. Although both statutes use the phrase “peer review committee,”
RCW 28B.10.648(1) and RCW 4.24.250(1) address distinct situations, so we decline
to rely on the court’s interpretation of the latter to interpret the former.
62 W EBSTER’S THIRD NEW INT’L DICTIONARY 458 (2002).
63 W EBSTER’S THIRD NEW INT’L DICTIONARY 1665 (2002).
64 W EBSTER’S THIRD NEW INT’L DICTIONARY 1944 (2002).
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In September of 2016, faculty from the Division of Pulmonary and Critical
Care Medicine “met to consider, among other issues, the reappointment of
volunteer clinical appointments.”65 Section 24-53 of the Faculty Code explains the
“voting members” at a nontenure reappointment meeting are “members of the
appropriate department . . . who are superior in academic rank or title to the
person under consideration.”66 Davidson alleged he was defamed when Glenny
and Skerrett addressed a reappointment meeting and raised the allegations
against him without explaining they were unfounded. Because Davidson alleged
his peers—other physicians in his department—met to critically examine whether
he deserved reappointment, he alleged Glenny and Skerrett defamed him during a
“peer review committee” meeting covered by RCW 28B.10.648(1). And because
the conditional immunity conferred by the statute applies equally to peer review
committee members and anyone “who provide[s] written or oral
statements . . . against a person reviewed,”67 Glenny and Skerrett are statutorily
immune from liability only if their statements were made in good faith.
A speaker abuses a qualified privilege or immunity when he knows his
statements are false.68 Davidson alleges Glenny and Skerrett “intentionally
omitted key information” and “each knew” they were spreading false impressions
65 CP at 7.
66 CP at 80.
67 RCW 28B.10.648(1).
68
Lillig v. Becton-Dickinson, 105 Wn.2d 653, 658, 717 P.2d 1371 (1986) (citing
Bender, 99 Wn.2d at 601).
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No. 80062-1-I/18
when they spoke with the peer review committee.69 Because Davidson alleged
Glenny and Skerrett did not act in good faith when speaking with the peer review
committee, the conditional immunity conferred by RCW 28B.10.648(1) would not
apply to them.
Therefore, we reverse.
WE CONCUR:
69 CP at 2, 7.
18