Prescription Practices Called into Question: Iowa Court Applies Four-Factor Test to Physician’s Defamation Claim Based on Report to State Medical Board
The Supreme Court of Iowa recently reversed the judgment of a district court and remanded the matter with instructions to enter summary judgment in favor of Hamilton County Public Hospital, operating as Van Diest Medical Center (the “Hospital”). The Supreme Court found that the Hospital’s alleged defamatory statements to the Iowa Board of Medicine (“IBM”) concerning Dr. Mark Andrew were nonactionable opinions—even though some of the Hospital’s statements implied criminal conduct.
Investigation of Dr. Andrew’s Prescription Practices
The Hospital hired Dr. Andrew, a general surgeon, in 2008 under an employment contract with three-year renewable terms1. In November 2016, a pharmacy contacted the Hospital and raised concerns about Dr. Andrew’s Vicodin prescriptions for one of his patients, T.C.2 Dr. Andrew treated T.C. over a four-year period. He performed surgery on T.C. in 2012, and eventually performed a second surgery on T.C. in 2016, after the patient rescheduled the second procedure multiple times3. Over the course of four years, Dr. Andrew prescribed nearly 12,000 Vicodin to T.C., who visited Dr. Andrew every two to four weeks for a total of 97 documented visits4. Despite T.C. having a separate primary care physician and receiving subsequent surgeries at other hospitals, Dr. Andrew continued to prescribe Vicodin to T.C. over the four-year period5.
The pharmacy was alarmed by the large quantities of opioids, the frequency of the refills prescribed to T.C., the dosage changes, T.C.’s switches between insurance payments and cash payments, the different residential addresses T.C. used on prescriptions, and T.C.’s use of several different pharmacies to fill the prescriptions6. In response to the pharmacy’s concerns, the Hospital conducted its own investigation and discovered that other pharmacies had raised similar concerns7.
Hospital’s Meeting with Dr. Andrew and His Subsequent Termination
On December 9, 2016, the Hospital’s Chief Nursing Officer, Medical Director, and Dr. Scott Altman, an outside physician consultant hired to assist with personnel issues and the creation of a peer review process, all met with Dr. Andrew8. Dr. Andrew acknowledged T.C.’s conduct was concerning. Dr. Andrew further stated he recently discharged T.C. as a patient, although the Hospital records did not indicate T.C.’s discharge9. When asked whether, in hindsight, Dr. Andrew would have done things differently, Dr. Andrew admitted that he would have been more skeptical of T.C.’s questionable conduct and would likely have used a pain management plan10.
The Hospital terminated Dr. Andrew’s employment for cause and without notice on December 15, 2016, based on its investigation into the care Dr. Andrew provided to T.C. and other patients11. Dr. Andrew did not undergo peer review because the Hospital exercised its administrative rights under the employment contract to immediately terminate the contract for cause12.
Dr. Andrew’s Defamation Action
Soon after the Hospital terminated Dr. Andrew’s employment, the outside physician consultant, Dr. Altman, filed a report with IBM13. The IBM report included a recitation of facts surrounding the Hospital’s investigation of T.C.’s prescriptions, the accuracy of which Dr. Andrew did not dispute14. Dr. Altman’s answers to some of the predefined questions formed the basis of Dr. Andrew’s defamation claim against the Hospital.
Question #1: “What would you like the [IBM] to do about your complaint?”
Dr. Altman’s Response: “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?” 15
Question #2: “Could this be an impaired physician who needs intervention and help?”
Dr. Altman’s Response: “[The second non-emergent surgery performed on T.C.] is generally not an endeavor to be taken without significant counsel and forethought. This case appears to vary significantly from the standard of care and raises questions of clinical competency. Is this a one-off or [does it] fit a pattern? His surgical competency should be reviewed. Should this physician’s surgical privileges by limited by the State?” 16
Question/Comment #3: “Other Potential Patients.”
Dr. Altman’s Response: “Is it possible for the [IBM] to query the Iowa (and potentially other State’s) pain management plan 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.” 17
The second report, which was also the subject of Dr. Andrew’s defamation claim, related to the Chief Nursing Officer’s report to the National Practitioner Data Bank (“NPDB”). The Chief Nursing Officer believed the Hospital was required to report Dr. Andrew’s for-cause employment termination18. The NPDB report only included a factual recitation of Dr. Andrew’s treatment of T.C., the facts of which Dr. Andrew never disputed19. The Supreme Court focused its analysis on the IBM report because the NPDB report included a recitation of undisputed facts. Defamation requires proving falsity, and Dr. Andrew did not identify any false statements in the NPDB report.
The Four-Factor Test Used to Determine Nonactionable Opinion vs. Actionable Defamation
The Hospital consistently maintained Dr. Altman’s statements in the IBM report were his opinions, which were “absolutely protected under the First Amendment.”20 Since defamation lawsuits sit at the intersection of civil liability and First Amendment rights, the Supreme Court started its analysis with this threshold question by applying a four-factor test.
Factors One and Two: The Precision and Specificity Factor and the “Easy to Verify” Factor
The first factor related to the precision and specificity of the alleged statements. The court had to determine if the defamatory statements had a precise core of meaning to which a consensus of understanding could exist, or in the alternative, whether the statements were indefinite and ambiguous21. The second factor related to the first by focusing on the degree to which the alleged defamatory statements were objectively capable of proof or disproof22. In other words, the court had to decide if the statements were precise and easy to verify.
Dr. Andrew objected to two portions of the IBM report. First, he objected to Dr. Altman’s characterization of his prescription practices as excessive and his level of care as incompetent23. But during the district court proceedings, the Supreme Court noted the presence of competing experts who testified on the issues of Dr. Andrew’s excessiveness and whether he violated the standard of care24. Competing experts meant these issues were not easily verifiable, and as a result, the high court concluded that the statements were “more properly considered characterizations of specific facts, which themselves [were] not false.”25 Based on the first and second factors, the court indicated this portion of the report contained nonactionable opinions26.
Second, Dr. Andrew objected to a statement in the IBM report that suggested the amount of narcotics he prescribed gave rise to an inference of self-use, collusion, or drug dealing. The court recognized that the statement fell closer to an accusation of criminal conduct, which, if false, was considered defamatory per se27. Dr. Altman followed the suggestion of criminal conduct by questioning whether IBM should reconsider Dr. Andrew’s prescribing authority28. The court gave the same scrutiny to the accusation of criminal conduct as it did to Dr. Altman’s question. The court noted, “questions, like opinions, can be defamatory when they imply the existence of defamatory facts.”29 Since the accusation and question were precise and easy to verify, the court signaled that the statements might be actionable defamation; however, the court cautioned that it still needed to consider the context of the statements, under the third and fourth factors, before ruling on this portion of the IBM report30.
Factors Three and Four: The Narrow Literary Factor and the Broadly Social Factor
The third factor focused on the narrow, literary context of Dr. Altman’s statements because “the degree to which statements are laden with factual content or can be read to imply facts depends upon . . . the whole discussion.”31 In other words, the court had to consider each statement as part of the whole, including tone and use of cautionary language32. The fourth factor focused on the broader social context into which the statements fit33. When viewed in a broad social context, the court focused on the category of publication, style of writing, and the intended audience34.
Based on the narrow, literary context of Dr. Altman’s IBM report, the court found that the statements were expressions of concern that might require further investigation35. Dr. Altman reported facts, which Dr. Andrew admitted were true, and then raised potential concerns using cautionary language that directly related to those facts36. The statements did not accuse Dr. Andrew of dealing drugs or engaging in malpractice; but read in context, the statements raised concerns that should be investigated further37. Therefore, the court concluded that the third factor indicated the IBM report contained nonactionable opinions.
Finally, the court turned to the last factor of the broader social context. Dr. Altman’s IBM report raised concerns directly to Iowa’s medical licensing board. Reports of this nature are confidential, mandatory in some cases, and broadly serve the purpose of notifying the medical licensing board that a physician may be placing the public at risk38. There is also a strong policy justification for recognizing the Hospital’s concerns as non-defamatory opinion rather than actionable assertions of fact because the quality of health care is best promoted by favoring candor in the medical peer review process39. Dr. Andrew argued that the IBM report should have only recited the facts and not provided views of the concerns raised by those facts. The court disagreed. The court stated that Dr. Andrew’s argument ignored the context in which the statements were made40. As a result, the fourth factor established that the IBM report contained nonactionable opinions41.
Based on the four-factor test, Dr. Andrew’s defamation claim failed because the challenged portions of the reports were nonactionable opinions.
The statutory scheme in most states supports, and may require, candid disclosure of information to the state medical boards while reporting valid concerns about physicians. The reports should recite specific verifiable facts that support concerns, and couch the concerns in terms of opinions or requests for further investigation by the medical board. Above all, reports should be factual, accurate, and absent of conclusory accusations. When reports are thoughtful, specific, and ultimately aim at protecting the public and the medical profession, courts are likely to support the preclusion of defamation actions, as the Supreme Court of Iowa determined in this case.
1 Andrew v. Hamilton Cty. Pub. Hosp., No. 20-0023, 2021 WL 2273352, at *1 (Iowa June 4, 2021).
3 Id at *1 -2
4 Id at 2
15 Id at 3
20 Id at 4 (quoting Kiesau v. Natz, 686 N.W. 2d 164, 177 (Iowa 2004))
21 Id at 7
25 Id at 7
31 Id (quoting Yates v. Iowa W. Racing Ass'n, 721 N.W. 2d 762, 770 (Iowa 2006))
35 Id at 8
41 Id at 9