This action for libel and slander was brought by a physician-surgeon against Health Insurance Corporation (HIP) and against Dr. Baehr, its president and medical director, and Dr. Daily who was the vice-president, deputy medical director and Medical Control Board chairman of HIP. HIP is a nonprofit membership corporation which sells medical expense indemnity insurance (see Insurance Law, art. IX-C) to some 500,000 insurees. The indemnified medical care is made available to the insured persons by 32 partnerships of physicians. Each partnership is called a Medical Group. An insured person chooses a particular Group for his medical care. Each Medical Group is an independent contractor with HIP and each has in its membership general practitioners and specialists, including surgeons. The contracts between the Medical Groups and HIP and between HIP and its insureds provide that medical services are to be rendered in accordance with accepted medical and surgical practices and in accordance with standards adopted by the Medical Control Board of HIP. That Control Board has 15 members. Two of them (defendants Baehr and Daily) were employees or officials of HIP, 5 represented the Medical Groups and 8 were prominent physicians from the community.
The several counts of the amended complaint set forth a number of alleged defamatory statements, some oral and some in writing, made by defendants on four dates in December, 1953
Each cause of action in the amended complaint alleges that the particular statement therein set forth was made in bad faith, without justification, in disregard of plaintiff's rights and with intent to injure plaintiff professionally, and that each libel or slander was motivated by actual malice. The answer admits that defendants Baehr and Daily, in making the statements, were acting within the scope of their authority and employment with HIP. Admitted also in the answer is the making of some, but not all, of the alleged defamatory statements. The answer then sets up as a first separate defense: that these statements, if made, were published, in the course of defendants' duties, to persons who had an interest in the matter, in good faith and without malice, and so were privileged. The other separate defenses in the answer are to the effect that the statements complained of were true in fact or in substance or were based on trustworthy information believed by defendants to be true.
Plaintiff, opposing summary judgment, served his own affidavit in which he charged defendants with malice and reckless disregard of his rights and interests. Summary judgment was denied. Both courts below concluded that plaintiff's affidavit showed that there was a triable issue of fact as to actual malice. The Appellate Division granted defendants leave to appeal to this court.
After a brief survey of the applicable law (not really in dispute) we will examine the opposing affidavits to see whether plaintiff has, by evidentiary facts, verified his charge of actual malice, at least to the extent of showing that there is a real, triable issue as to such malice.
"`A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation'" (Byam v. Collins, 111 N.Y. 143, 150). "The rule of law that permits such publications grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person. Such privilege is known as a qualified privilege. It is qualified because it does not extend beyond such statements as the writer
For the background facts, we turn to defendants' affidavits and exhibits. Although defendants do not have the burden of showing lack of malice, the documents themselves, consisting of actual minutes of hearings and meetings and attached to the opposing affidavits, go far toward negating malicious motivation. They show that in 1953 Drs. Baehr and Daily were informed that plaintiff's malpractice liability insurance was about to be cancelled (or would not be renewed) by the insurer because of alleged fault. HIP's Medical Group agreements required the carrying of such insurance by each member physician. Investigation by defendants showed that the malpractice liability insurer had made money settlements of malpractice suits arising from surgical operations performed by plaintiff. After HIP got this news, there followed conferences and hearings of the HIP Medical Control Board, at some of which plaintiff
Plaintiff in effect admitted that two of his former hospital staff appointments had lapsed but insisted that no charge of his incompetency was involved. At the first hearing he said that he had two new hospital connections but later a doubt arose, from information received by defendants, as to whether these new associations really meant that plaintiff was an active member of the two new hospital staffs. At the hearings plaintiff pointed out that he had been approved some years before by HIP as a Group surgeon but the answer made to this was that defendants retained the power to review the qualifications of Group members, at any time.
At an executive session held after the first hearing, defendant Daily called to the Medical Control Board's attention that the two malpractice cases, according to his information, revealed gross incompetency. The Medical Control Board then temporarily withdrew its approval of plaintiff as a surgeon in his Medical Group.
We now examine plaintiff's answering affidavit in which he seeks to overcome all this by showing actual malice. In examining that affidavit we remind ourselves that there is a positive requirement that it must show evidentiary facts (O'Meara Co. v. National Park Bank, 239 N.Y. 386, 395) and that a motion for summary judgment may not be defeated by charges "based upon surmise, conjecture and suspicion" (Bank for Savings v. Rellim Constr. Co., 285 N.Y. 708-709).
Plaintiff's answering affidavit says that, as the head of his Medical Group, he had differed sharply and often with defendants Baehr and Daily and other HIP officials on matters of policy and that this had engendered the animosity of defendants and caused them to regard him as a troublemaker. Plaintiff avers that defendants resented this opposition and made derogatory statements about him — but no details as to such alleged statements are given. Plaintiff swears that this ill will and malice toward him brought about a conspiracy to defame him and to remove him as a Medical Group surgeon. But here again there are no specifications of the where and when of the conspiracy or anything beyond plaintiff's say-so. He alleges that the hearings were a mock trial only, called to effect a predetermined
Nowhere in plaintiff's affidavit are there any evidentiary facts (as distinguished from mere conclusory allegations). Facts from which a jury could infer malice are not revealed. Defendants had a duty and a right to investigate and to communicate the results of their investigation to other similarly interested persons. Those communications were privileged unless made because of malice. It was for plaintiff to show that he had facts available to prove such malice. He produced none. Suspicion, surmise and accusation are not enough. The existence of earlier disputes between the parties is not evidence of malice (Hemmens v. Nelson, 138 N.Y. 517, 524, supra; Ashcroft v. Hammond, 197 N.Y. 488, 496, 498, supra).
The order appealed from should be reversed, the certified question answered in the negative and defendants' motion for summary judgment dismissing the complaint granted, with costs in all courts.
Order reversed, with costs in all courts, and the case remitted to Special Term for further proceedings in accordance with the opinion herein. Question certified answered in the negative.