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Roland Imperial v. Drapeau8/27/1998
t resolution of claims of malpractice against health care providers. At the same time, we are mindful of the damage that may be done to a health practitioner's reputation by a defamatory statement. But balancing the potential harm caused by such statement made during the pendency of the arbitration process against the societal value of maintaining the integrity of the process itself, we accord greater weight to the latter. The strong public policy considerations which led us to accord an absolute privilege in Adams and Miner are equally present in the circumstances of the present case."
Id. at 534-35, 588 A.2d at 793. See also Adams, 288 Md. at 8-9, 415 A.2d at 295-96 (document prepared by psychiatrist for use in connection with a pending divorce proceeding held to be absolutely privileged); Arundel Corp. v. Green, 75 Md. App. 77, 83-85, 540 A.2d 815, 818-19 (1988) (citing Restatement (Second) of Torts 586 & cmts. a, e (1977)) (holding that attorney's statements prior to commencement of litigation were absolutely privileged).
In McDermott, 317 Md. 12, 561 A.2d 1038, we declined to extend the privilege to a psychological report prepared at the request of an individual's employer. In that case, the plaintiff was a trainee Park Police Officer with the Maryland-National Capital Park and Planning Commission. One aspect of the training involved horse-mounted field patrolling. During these exercises the plaintiff experienced physical and psychological trauma and asked on multiple occasions that he be excused from the exercises. His employer ordered that he consult a psychologist. The plaintiff claimed that the report ultimately prepared by the psychologist was defamatory; the doctor in turn claimed, inter alia, an absolute privilege for participants in a judicial proceeding. Id. at 15-16, 21-22, 561 A.2d at 1040, 1043.
We held that the "insufficient procedural safeguards" outweighed whatever public value was to be found in having mental health care professionals insulated from liability over their diagnoses. Id. at 26, 561 A.2d at 1045. In particular, " here was no legally cognizable tribunal administering the proceeding; there was no public hearing adversary in nature; no compellable witnesses were sworn or cross-examined; no reviewable opinion or analysis was generated; and, most significantly, [the plaintiff] did not have the opportunity to present his side of the story." Id.
In the instant matter Drapeau cites Arroyo v. Rosen, 102 Md. App. 101, 648 A.2d 1074 (1994), where the Court of Special Appeals declined to extend the absolute privilege for participants in judicial proceedings to statements made to academic bodies of inquiry by one scientist reporting allegedly unscientific practices by another scientist. Ultimately, most of the charges were found to be untrue; a defamation suit ensued, and the defamed scientist was awarded damages.
The author of the defamatory statements urged an extension of the privilege to cover "testimony before bodies investigating allegations of scientific misconduct," and argued that the public issue at stake included "the interest of society in the soundness of [scientific] research." Id. at 108, 648 A.2d at 1077. In declining to extend the privilege, then-Chief Judge Wilner wrote for the court that the total lack of procedural safeguards protecting a scientist who might be defamed before a private inquiry board was a consideration sufficient to outweigh the public's interest in good science.
Present in the instant matter are the factors that give rise to the absolute privilege. First, the importance to the public that all medical participants in the emergency medical system be competent is self-evident. Indeed
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