DEFAMATION.
No man may disparage the reputation of another. Every one has a right
to have his good name maintained, unimpaired. Words which produce any
perceptible injury to the reputation of another are called defamatory:
and if they are false they are actionable. False and malicious
defamatory words, if in printing, writing, pictures or signs, and
published, constitute a libel; if spoken, a slander. A caricature may
be a libel; so may a chalk-mark on a wall, a statue, hieroglyphics, a
rebus, an anagram or an allegory, or even ironical praise.
Defamatory matter, whether published in the form of libel or slander,
is actionable when it imputes a criminal offence (or a contagious or
infectious disorder) or affects the plaintiff injuriously in his lawful
profession, trade or business, or in the discharge of a public office,
or generally when it is false and malicious, and its publication
causes damage to the plaintiff either in law or in fact. Defamatory
matter, the publication of which tends to degrade or disparage the
plaintiff, or which renders him ridiculous, or charges him with want of
honesty, humanity or veracity, or is intended to impair his enjoyment
of society, fortune or comfort, is actionable as libel, but not as
slander, unless special damage be proved [340]. |130|
The person defamed by a libel has not only a civil remedy to recover
damages but he may also, in some cases, proceed criminally by way of
information or indictment and have the defamer punished as an offender
against the state. If he proceeds by information he must in general
waive his right to bring a civil action; but he may sue for damages
after the offender has been convicted upon an indictment. An action
for libel must be brought within six years; and an action for slander
within two years, unless the words spoken are actionable only by reason
of special damage, in which case the action may be brought at any time
within six years.
Whenever a special kind of knowledge is essential to the proper
conduct of a particular profession, denying that a man possesses such
special knowledge will be actionable if he belongs to that particular
profession, but not otherwise. Thus to say of a physician, “Thou art
a drunken fool and an ass. Thou wert never a scholar, nor even able
to speak like a scholar,” is actionable, because no man can be a good
physician unless he be a scholar [341]. Although one may with impunity
say of a Justice of the Peace, “He is a fool, an ass and a beetle
headed justice” [342]. So to say, of a midwife, “Many have perished
for her want of skill;” or, “She is an ignorant woman, and of small
practice and very unfortunate in her way; there are few she goes to
but lie desperately ill, or die under her hands;” is actionable [343].
Or of an apothecary, “He is not an apothecary; he has not passed any
examination. Several have died that he had attended, and there have
been inquests held upon them” [344]. Although one may safely say of a
Justice of the Peace, “He is a blood sucker, and sucketh blood.” |131|
It is actionable to say of a person in his professional character, “He
is no doctor; he bought his diploma for $50” [345]. Any words imputing
to a practising medical man, misconduct or incapacity in the discharge
of his professional duties, are actionable _per se_. Thus, it is
actionable, without proof of special damage, to accuse one of having
caused the death of any patient through his ignorance or culpable
negligence, as to say of a physician, “He killed my child by giving it
too much calomel,” or, “He hath killed J. S. with physic, which physic
was a pill;” or, “He was the death of J. P.; he has killed his patient
with physic; it is a world of blood he has to answer for in this
town through his ignorance; he did kill a woman and two children at
Southampton; he did kill J. P. at Petersfield;” or, as an American did,
“Dr. S. killed my children; he gave them teaspoonful doses of calomel,
and it killed them. They did not live long after they took it. They
died right off the same day” [346].
So it is to say of an apothecary, “He poisoned my uncle; I will have
him digged up again, and hang him,” or, “He killed my child; it was
the saline injection that did it;” or, “I was told he had given my
child too much mercury, and poisoned it; otherwise, it would have got
well” [347].
So it is actionable to say of a surgeon and accoucheur, “He is a bad
character; none of the medical men here will meet him.” As such words
impart the want of a necessary qualification for a surgeon in the
ordinary discharge of his professional duties; or, “Dr. Tweedie has
honorably and faithfully discharged his duties to his |132| medical
brethren in refusing to act or consult with Ramadge (a physician),
and we hope every one else will do the same” [348]. Or to call a
practising medical man “a quack,” “a quacksalver,” “an empiric,” or “a
mountebank,” or to say of him, “Thou gavest physic which thou knewest
to be contrary to the disease,” or “Thou art no good subject, for thou
poisonedst A. F.’s wound, to get more money of him.” Under the New York
Statutes, a homœopathic physician may maintain an action for being
called a quack [349]. And it seems that an action will lie, without
averment of special damages, for slander imputing to a physician, that
he has taken advantage of his character as a physician to abuse the
confidence reposed in him, and commit acts of criminal conversation
with a patient [350].
In the case of libel, any words will be presumed defamatory which
expose the plaintiff to hatred, contempt, ridicule or obloquy, which
tend to injure him in his professional trade, or cause him to be
shunned or avoided by his neighbours. Thus, to advertise falsely that
certain quack medicines, “consumption pills,” were prepared by a
physician of eminence, is a libel upon such physician [351].
Whenever a medical man brings forward some new method of treatment and
advertises it largely as the best, or only cure for some particular
disease, or for all diseases at once, he may be said to invite
public attention, and a newspaper writer is justified in warning the
public against such advertisers, and in exposing the absurdity of
their professions, provided he does so fairly and with reasonable
judgment [352]. |133| A medical man, who had obtained a diploma and the
degree of M.D., from an American College, advertised in England most
extensively a new and infallible cure for consumption. The _Pall Mall
Gazette_ published a leading article on these advertisements, in which
they called the advertiser a quack and an impostor, and compared him to
scoundrels “who pass bad coin.” This was considered as overstepping the
limits of fair criticism, and a verdict was given for the plaintiff,
with damages, one farthing [353]. So where the editor of the _Lancet_
attacked the editor of a rival paper, _The London Medical and Physical
Journal_, by rancorous aspersions on his private character, not fairly
called for by what the plaintiff had done as an editor, the plaintiff
recovered a verdict of £5 [354].
On the other hand, it is not actionable to say of a surgeon, “He
did poison the wound of his patient,” without some averment that
this was improper treatment, for it might be proper for the cure of
it. Nor to say of an apothecary, “He made up the medicine for my
child wrong, through jealousy, because I would not allow him to use
his own judgment” [355]. Nor to charge a physician or surgeon with
“malpractice,” if it appear that the word was not used or understood
in a technical sense; and to charge a physician or surgeon with mere
want of skill, or with ignorance or neglect, is not actionable _per
se_, though untrue, unless the charge be of gross want of skill, or the
like, so as to imply general unfitness [356].
Nor is it actionable to call a person who practises medicine or
surgery, without legal qualification, a “quack or an |134| impostor,”
for the law only protects lawful employment [357]. Even though a medical
man be duly registered in Great Britain, still, if he is practising
in a colony which requires registration without complying with the
colonial law, he may safely be called “a quack,” “a charlatan,” “a
scoundrel not to be entrusted with the lives of people” [358].
Words imputing immoral conduct, profligacy or adultery, even when
spoken of one holding an office or carrying on a profession or
business, are not actionable unless they “touch him” in that office,
profession or business. Thus, if adultery is alleged of a clergyman,
it will be actionable, because if the charge were true, it would be a
ground for degradation or deprivation, as it would prove him unfit to
hold his benefice, or to continue the active duties of his profession.
But if the same words are spoken of a physician, they will not be
actionable without proof of special damage, as they do not necessarily
affect the plaintiff in relation to his trade or profession [359].
Nor unless the words are spoken in connection with the professional
duties of the plaintiff will an action lie for the words, “He is so
steady drunk, he cannot get business any more;” or “He is a twopenny
bleeder” [360].
It is no libel to write of a physician that he is in the habit of
meeting homœopathists in consultation [361].
Where the plaintiff considers that the words spoken touch him in his
profession or trade, he must always aver in the pleadings that he was
carrying on the profession of a physician or surgeon, or the trade
of a druggist, at the |135| time the words were spoken. Sometimes
this is admitted by the slander itself, and if so, evidence is of
course unnecessary in proof of this averment. But in other cases,
unless it is admitted on the pleadings, evidence must be given at
the trial of the special character in which the plaintiff sues. As a
rule, it is sufficient for the plaintiff to prove that he was engaged
in the profession or trade, without proving any appointment thereto,
or producing a diploma or other formal qualification. For the maxim
_omnia presumuntur rite esse acta_ applies. But if the very slander
complained of imputes to the medical practitioner that he is a quack or
an impostor, not legally qualified for practice; or if the plaintiff
aver that he is a physician and has duly taken his degree, then the
plaintiff at the trial must be prepared to prove his qualification
strictly by producing his diploma or certificate. In some cases the
mere production of the diploma will not be sufficient proof of the
plaintiff’s having the degree, but it may be necessary to prove that
the seal affixed is the seal of a university having power to grant
degrees; or in the case of the production of a copy of the diploma,
that it has been compared with the original [362].
Whether or no the words were spoken of the plaintiff in the way of his
business is a question for the jury to determine at the trial. There
should always be an averment in the statement of claim, that the words
were so spoken, and it should also be shewn in what manner the words
were connected by the speaker with the profession [363].
Medical practitioners are of course equally liable with other men to
an action for defamation, in respect of any |136| false and malicious
communication, whether oral or written, made by them to the damage of
another, in law or in fact; circumstances, however, frequently arise
where, from the nature of their employment, it becomes their duty or
interest to make some communication prejudicial to the character or
conduct of another, and in such cases, where the occasion on which
the communication was made rebuts the presumption of malice, (which
the law infers from such a statement,) such communication is said
to be privileged, and therefore, in order to sustain an action for
defamation, the plaintiff must prove that the defendant was actuated by
express or actual malice—that is, malice independent of the occasion
on which the communication was made. The legal canon is, that 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 contains criminatory matter, which
(without this privilege) would be slanderous and actionable. This
applies, moreover, though the duty be not a legal one, but only a
moral or social duty of imperfect obligation, and also where the
communication is made to a person not in fact having such interest
or duty, but who might reasonably be, and is supposed by the party
making the communication to have such interest or duty [364]. Even
where the evidence of duty is not present to the mind, but the speaker
is impelled by a sense of propriety, on which he does not pause to
reflect, and which he refers to no special motive, nevertheless, if
his conduct in speaking the words be within the occasion of interest
or of duty which is capable of protecting, the communication will be
considered privileged [365].
Words spoken by the medical officer of a college concerning |137|
the meat furnished to the institution; and words used by the medical
attendant of a poor-law union about the wine supplied to the inmates,
are privileged, in the absence of proof of actual malice [366]. A
statement made by a physician that an unmarried woman is pregnant is
not a privileged communication, unless made in good faith to one who is
reasonably entitled to receive the information [367].
|138|