Your signature may allow other others to make defamatory statements about you or your job performance.
While a medical resident was completing his final year of a 4-year training program, a new program director was hired. Subsequently, the resident received several negative performance evaluations. While the resident argued that the negative evaluations were due to the program director’s “personal bias” against him, the training program stated that those negative evaluations were due to the resident’s difficulties with interpersonal communications. Upon graduation, the resident applied for clinical privileges at several hospitals. As part of the application process, the resident signed a consent for release of information stating:
I release [entities either seeking or providing information about me] from liability resulting from (a) any and all acts performed by them or delegated to others providing, obtaining, assembling, maintaining and sharing any information as authorized or contemplated hereby, (b) any recommendation any of the foregoing may make to any party concerning my Qualifications, and (c) the release of information as contemplated hereby.
The program director then made several negative comments on the resident’s evaluation form and also checked a box stating he “cannot recommend” the resident for the position. As a result, although the resident ultimately did obtain privileges at the hospital where he applied for a job, those privileges were reduced in duration and his practice at the hospital was “limited” by the hospital administration.
The resident then sued, alleging that his training program and his former program director defamed him, interfered with his prospective contract, and intentionally inflicted emotional distress upon him. The court initially dismissed his contractual interference and emotional distress claims, stating that the resident had not alleged facts sufficient to sustain those claims. After further litigation, the court also dismissed the resident’s defamation claims. The reasoning for the court’s decision in this regard is important.
To successfully sue for defamation, a plaintiff must prove that the defendant intentionally made false statements to a third party and those statements harmed the plaintiff’s reputation. In this case, the court held that under Arizona law “consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.” The court also bolstered its opinion by citing laws from several states with similar language. While the court discussed other issues involving the consent, it ultimately ruled that under Arizona law a signed consent is a complete defense to a plaintiff’s defamation claim, even if the defendants act maliciously when making the statements. In other words, even if the residency director knew that he was making untrue statements that injured the resident’s reputation, and even if those statements were intended solely to harm the resident’s reputation, the language in the signed release barred any liability for making those statements.
Chi v. Loyola University Medical Center, 10 C 6292 (N.D.Ill. 2013)
Take Home Points
1. Realize that hospital credentialing can be a high-stakes endeavor.
If a hospital credentials a physician who is later determined to be unfit for practice, the hospital may be liable for claims of “negligent credentialing.” However, if a hospital refuses to credential a physician for practice-related issues, the physician could be reported to the National Practitioner Databank and the hospital could be sued for failing to credential the physician. In general, it is the physician’s duty to demonstrate that he has met a hospital’s credentialing criteria, but the hospital must still engage in due diligence when evaluating the physician’s application prior to allowing the physician to practice. The release of information forms, along with their exculpatory language, allow hospitals to perform due diligence while also protecting the hospitals from liability for the credentialing process.
2. The exculpatory language contained in releases for information is often extensive.
The case above shows that this language may make it difficult to prevent negative remarks from being made about you – even if the remarks are untrue. In fact, some release forms have even stronger exculpatory language. Many requests require you to waive your right to review what others have said about you. I have reviewed forms requiring “absolute immunity to the fullest extent permitted by law” for credentialing actions and requiring the physician to agree to pay all costs of any litigation involving credentialing actions. Often with credentialing, not only won’t you know what’s being said about you, but you’ll also waive any recourse if people make negative comments about you.
3. Release of information requests usually amount to a “take it or leave it” proposition.
In other words, either you accept the terms of the agreement “as-is” or you find another hospital. Hospitals won’t process your credentialing application without a signed release. These types of agreements are called “contracts of adhesion.” While contracts of adhesion are usually still enforceable, courts may be willing to void terms that are unconscionable, biased, or unclear. Challenging a release in court is one way to combat inappropriate comments being made about you. However, as the case above demonstrates, you may not win such a challenge.
4. Limit the scope of the release
One way to improve your chances of winning in court (and also to put third parties on notice that they may be liable if they misbehave) is to limit the scope of the release. Any release of liability should be limited to actions taken “in good faith and without malice.” These specific words should be contained in the release. Defamatory statements, which by definition are malicious and false, would not be covered by this type of limited release of liability and would therefore be actionable. If a hospital won’t agree to act in good faith and without malice, you should question the hospital’s motives … and then find another facility. Don’t waive your rights.
5. Many hiring decisions are made outside the forms.
Even with a limited release of liability, keep in mind that many hiring and credentialing decisions are made outside of credentialing forms. A colleague who runs a small staffing company once said that he makes his hiring and credentialing decisions based on the response he receives to a text message. He texts the name of a physician to a residency director colleague. If he receives a “thumbs up” emoji, the physician gets hired. If he receives a phone call from the residency director just to “check in,” the application gets flagged. Your professionalism and work ethic will follow you long after you graduate your residency. No release will overcome a bad reputation.