Nurse wins defamation case against employer

A St. Louis County jury determined that a doctor had defamed his former employee and it awarded her $150,000.

Jessica Doiron is an advanced practice nurse who worked for Dr. Orlando Cruz’s medical practice in the St. Louis area for about a year. In May 2005, Cruz prepared a performance evaluation of Doiron, gave her top marks in each category and sent the evaluation to a hospital where Doiron sought renewal of her nursing privileges.

Two days after the evaluation, Doiron submitted her resignation, stating that she had been offered a position at another, competing medical practice.

About 18 days later, Cruz prepared a three-page letter alleging Dorion had provided deficient patient care and displayed significant misconduct and ethical violations. He sent the letter to the Missouri Board of Nursing and to the credentialing committees at the hospitals where Doiron had privileges. Cruz’s actions prompted the Missouri Board of Nursing to conduct an investigation, but the board ultimately concluded that no disciplinary action was warranted.

At trial, the plaintiff claimed that the defendant’s letter was false and defamatory. The plaintiff claimed that before the letter, the defendant had never notified her of poor-performance issues or disciplined her for any reason. The defendant’s original performance evaluation demonstrated the defendant’s true opinions of her work performance, the plaintiff claimed. Finally, the plaintiff claimed that the defendant’s letter significantly damaged her professional reputation and caused her significant emotional distress.

The defense countered that only certain portions of the letter sent to the Missouri Board of Nursing were at issue because of prior trial court rulings and that those statements were at least substantially true. The defense also contended that the performance evaluation he originally sent was intended for another one of his nurses. The defense further argued that the plaintiff had not proved damage to her reputation.

Although the defendant’s letter cited multiple work-performance and patient-care issues, the court limited the statements to be considered for actual defamation to two: That the plaintiff was never at work on time, and that she constantly disclosed confidential business information to competitors.

“We thought we could prove that the two statements in question, if not literally true, were substantially true,” said defense attorney Clark Cole.

Cole also said the current Missouri Approved Instructions (MAI) improperly put the burden of proof on the defendant to prove truth. He said he does not think the MAI in question accurately reflect more recent Missouri and federal law. Cole said the more recent law places the burden on the plaintiff to show falsity. Judge Gloria Clark Reno, however, submitted the current MAI as proposed by the plaintiff.

The parties disagreed at trial about when the plaintiff’s agreed start time was at work. The defendant contended it was 8 a.m., and Cole said the plaintiff admitted she frequently arrived after 8 a.m. Berns said that the plaintiff testified that she understood she was allowed to come into work within a more flexible time frame, and that she regularly arrived within that window. Cole said that while there was a dispute about her actual start time, the defendant’s statement about her arriving late was substantially true.

Berns said the disclosure of confidential business information statement arose from the plaintiff’s job interview with the competing medical practice, but that the plaintiff had merely answered typical job interview questions.

“At some level, this was a he-said, she-said,” said Berns.

Berns said he believes the defendant’s credibility was eroded when he claimed that his original performance review of the plaintiff was for another nurse. Berns said he presented evidence at trial that the defendant had completed a performance review for the other nurse only two months before.

“He came back with an argument that he did complete that performance evaluation but it was just a mistake and just an error on his part,” said Berns.

To help prove that the plaintiff’s reputation had been damaged, Berns said he enlisted the testimony of the vice president of patient care quality at St. Anthony’s Hospital, Dr. Robert Griesbaum. Griesbaum testified that he hires nurses and during the hiring process he asks if they have ever had a complaint taken out against them. It hurts their chances of being hired if they have, he said. Griesbaum also testified that the defendant is a well-respected physician in the area and that people would believe what he’d written.

“We do not believe the plaintiff presented competent evidence of damage to her reputation,” said Cole. “She went to work for the very competitor that she was disclosing business information to.

“We were hoping the jury would agree with us that notwithstanding all of the questions raised about my client’s motives, the two statements in question, the ones the judge told the jury to focus on, were substantially true.”

The jury ultimately delivered a 9-3 plaintiff verdict of $150,000.

“On one hand,” said Berns, “it’s very difficult to prove a defamation case – to prove all the elements of defamation, to prove that one’s reputation has been harmed. But on the other hand, I think juries do get angered by somebody in a situation like this, where you have somebody who’s lashing out and attacking somebody’s reputation.”

■ $150,000 jury verdict

Defamation

■ Court: St. Louis County Circuit Court

■ Case Number/Date: 08SL-CC00110/Oct. 29, 2009

■ Judge: Gloria Clark Reno

■ Last Pretrial Demand: $150,000

■ Last Pretrial Offer: $15,000, according to plaintiff; $20,000, according to defendant

■ Caption: Jessica Doiron v. Orlando Cruz

■ Plaintiffs’ Attorney: Jerome J. Dobson and Jonathan C. Berns, Dobson, Goldberg, Berns & Rich, St. Louis

■ Defendants’ Attorneys: Clark H. Cole and Patrick J. Kenny, Armstrong Teasdale, St. Louis