Hospital’s Statements to California Nursing Board Cannot Be Subject of Defamation Suit

Nurse’s claim is barred even if she can show statements were not made in good faith

By Joanne Deschenaux, J.D. Mar 13, 2017
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​A nurse who was terminated from her job at a hospital and subsequently investigated by the California Nursing Board could not sue the hospital for defamation based on its comments made to the board. Statements made in an official proceeding before the board are absolutely privileged even if the nurse can show they were not made in good faith or were based on inadequate investigation, the California Court of Appeal concluded.

Diana Lemke was terminated from her job as a registered nurse at Sutter Roseville Medical Center in Roseville, Calif., after improper administration of narcotics to a patient and failure to properly monitor and document the patient's condition.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

After her termination, she was notified by the board that an investigation was being conducted and that she might be subject to disciplinary action.

Lemke filed a defamation claim against the hospital and against several hospital employees who were instrumental in her termination and who had made statements to the board in the course of its investigation. The trial court dismissed her claim before trial.

Lemke claimed that the trial court erred in dismissing her claim because she produced evidence that the statements to the board were false and based on inadequate investigation, and therefore she was entitled to a trial on her claim. The appellate court affirmed the trial court's dismissal of the complaint.

Absolute Privilege Under California Law

Under the California Civil Code, defamation requires that a statement is false, defamatory and unprivileged. The code provides an absolute privilege for statements made in an official proceeding, which includes any legislative or judicial proceeding as well as "any other official proceeding authorized by law." The absolute privilege encompasses communications made to instigate an official investigation and made in connection with the investigation once it has begun.

"The absolute privilege bars an action for defamation based on a report of misconduct to an appropriate regulatory agency, even if the report is made in bad faith," the court said. For purposes of the absolute privilege, the nursing board is an appropriate regulatory agency in that it is charged with the responsibility to discipline the registered nurses it licenses, the court added.

Therefore, it didn't matter whether Lemke could show that the statements were false or made in bad faith; she couldn't pursue her lawsuit for defamation either way, the court concluded.

Lemke v. Sutter Roseville Medical Center, Calif. Ct. App., No. C078983 (Feb. 27, 2017).

Professional Pointer: Although this case arises in the context of a disciplinary complaint filed against a nurse, there is nothing in the broad language of the decision to limit it to that context. It is likely that a statement made to any state disciplinary or licensing board would similarly be absolutely privileged and could not support a defamation suit, even if the statement is not true.

Joanne Deschenaux, J.D., is a freelance writer based in Annapolis, Md.

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