Page 1
Court of Appeal:
Doctor’s Defamation Claim Against AMA Survives Scrutiny
Opinion Says Anti-SLAPP Motion Properly Denied as to Public Statements Accusing Plaintiff of Denying in Podcast That ‘Structural Racism’ Exists in Healthcare
By Kimber Cooley, associate editor
|
|
|
EDWARD H.
LIVINGSTON |
Div. One of this district’s Court of Appeal has held that a doctor’s defamation cause of action against the American Medical Association for publicly decrying statements he made in a podcast—in which the surgeon questioned the helpfulness of describing unequal access to medical care as “racism”—survives anti-SLAPP scrutiny because the plaintiff successfully established a probability of succeeding on the merits of the claim.
The court found that a statement by employees of the association published in Time Magazine characterizing the podcast as “den[ying] the existence of structural racism in medicine” was not an expression of an opinion but a statement of fact capable of sustaining a defamation claim, finding that the organization could not repeatedly claim that structural racism is a reality and at the same time argue that a denial of its existence is simply a belief.
Dr. Edward H. Livingston, a professor of surgery at the UCLA David Geffen School of Medicine, was a deputy editor at the Journal of the American Medical Association (“JAMA”) in February 2021 when he hosted a podcast titled “Structural Racism for Doctors—What Is It?”
In the podcast, Livingston acknowledged that members of some racial groups suffer disproportionate access to medical care but expressed concern that the use of the term “racism” to describe the problem may provoke an emotional response, preventing healthy discourse. He said “[s]tructural racism is an unfortunate term to describe a very real problem” which he described as “more of a socioeconomic phenomenon.”
Controversy Flares
An online firestorm erupted after a JAMA employee promoted the podcast on social media. On March 4, 2021, Dr. Aletha Maybank, the chief health equity officer for the American Medical Association (“AMA”), posted on Twitter:
“The podcast/tweet are/were wrong, absolutely appalling & at its very core is a demonstration of structural & institutional racism. I am furious.”
Dr. Howard Bauchner, JAMA’s editor-in-chief, asked Livingston to resign from the journal for his statements in the podcast, which the physician did on March 9, 2021. Bauchner was himself placed on administrative leave a few weeks later over concerns about the podcast and later stepped down as editor.
Maybank and three others co-authored a story published in Time Magazine on April 21, 2021, titled “The World’s Leading Medical Journals Don’t Write About Racism. That’s a Problem.”
The article contained the statement that “JAMA—a journal recently thrust into public discourse after its editor-in-chief was placed on administrative leave for sponsoring a podcast that denied the existence of structural racism in medicine—has not published a single empirical study measuring racism in the 30 years we looked at.”
Complaint Filed
On March 17, 2022, Livingston filed a complaint against the AMA, Maybank, and other AMA employees, asserting causes of action for wrongful termination, defamation, intentional infliction of emotional distress, and invasion of privacy.
AMA filed a special motion to strike the complaint, arguing that all of the plaintiff’s claims arose from activity protected by California’s anti-SLAPP statute.
An anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, is analyzed in a two-step process: first the defendant must show that the activity at issue is protected conduct, and if it is, the burden shifts to the plaintiff to show a probability of success on the merits.
Los Angeles Superior Court Judge Curtis A. Kin separated Livingston’s allegations of defamation into 11 separate statements and concluded that all of them constituted protected speech because they “were made in connection with an issue of public interest.”
Turning to the second part of the analysis, Kin granted the motion to strike as to most of the allegations in the complaint but found that “the third cause of action for libel survives and the fourth cause of action for intentional infliction of emotional distress based on libel survives” based on the Time magazine statement. He explained:
“A reasonable trier of fact could…find that plaintiff advocated for a nuanced discussion concerning structural racism…, but did not deny its existence. Thus, plaintiff has sufficiently demonstrated that Maybank may have made a demonstrably false statement about him.”
Both sides appealed.
Justice Gregory Weingart authored the unpublished opinion, filed Thursday, affirming the order in all respects except one: the court reversed as to a false light invasion of privacy claim which the court found survived scrutiny for the same reasons as the defamation cause. Acting Presiding Justice Helen I. Bendix and retired-Presiding Justice J. Anthony Kline, sitting by assignment, joined in the opinion.
Time Magazine Statement
The AMA contends that Livingston cannot show a probability of success as to his defamation claim relating to the statement in the Time Magazine piece (referred to in the opinion as “statement No. 3”) because the assertion that the podcast “denied the existence of structural racism in medicine” was only an opinion incapable of being true or false.
Unpersuaded, Weingart said:
“AMA argues that the context of the Time Magazine article indicates that it should be interpreted as ‘pure opinion.’ We disagree. The Time article reads primarily as an opinion piece, but the authors present themselves as medical experts and make numerous factual claims to bolster their arguments.”
By way of example, he pointed to a portion of the Time article that says:
“Of the more than 200,000 total articles published over the past 30 years in the New England Journal of Medicine (NEJM), The Lancet, the Journal of the American Medical Association (JAMA), and British Medical Journal (BMJ), less than 1% included the word ‘racism’ anywhere in the text.”
He continued:
“A reasonable reader could interpret the claim in statement No. 3, that the podcast ‘denied the existence of structural racism in medicine,’ as an equally factual claim about the content of the podcast….AMA removed the podcast from its Web site days after publishing it, making it difficult or impossible for a reader of the article to find out what exactly Livingston said.”
The jurist found relevant statements made by employees of the AMA about structural racism, saying:
“Another indication that statement No. 3 can reasonably be interpreted as making a factual claim is that AMA itself repeatedly claimed in its public responses to the podcast that the existence of structural racism is an established fact. Thus, in an apology published on JAMA’s Web site on March 8, 2021, Bauchner wrote, ‘Racism and structural racism exist in the U.S. and in health care.’ Bauchner made the same statement a week later in a YouTube livestream. [Dr. James Madara], the CEO of AMA, made an even more unequivocal version of this statement in an article published on the AMA Web site at around the same time. He wrote that ‘structural racism exists in the U.S. and in medicine….This is not opinion or conjecture, it is proven in numerous studies, through the science and in the evidence.’ (Italics added.)”
Under these circumstances, Weingart opined:
“Given this history, it is disingenuous for AMA now to assert that its statement that the podcast denied the existence of structural racism in medicine is AMA’s opinion about Livingston’s opinion. AMA has repeatedly stated the existence of structural racism in medicine is not an opinion but a scientific fact. Saying someone has denied the existence of a provable scientific fact is a statement of fact about a statement of fact, not an opinion about an opinion.”
Livingston’s Skepticism
Turning to Livingston’s statements, he wrote:
“Livingston expressed some skepticism about the concept of structural racism—indeed, in the introductory section, he said that the subject of the podcast would be ‘structural racism for skeptics.’ But his skepticism was mostly directed at whether it was useful to label the phenomenon using the term racism, rather than other terms describing the reality of the underlying phenomenon….In this way, Livingston arguably accepted that structural racism, as AMA has defined it, exists.”
The justice declared that “[d]rawing all reasonable inferences in his favor, Livingston has made a prima facie case that the gist or sting of the accusation in statement No. 3 was not true.”
The case is Livingston v. American Medical Association, B324638.
Livingston was represented by Daniel M. Graham and Anoush Ashkarian of the Torrance-based Law Offices Of Daniel M. Graham. Rebecca Nell Kaufman of Bergeson LLP’s Beverly Hills office and Susan Elizabeth Bower of its San Jose office represented the AMA.
Copyright 2024, Metropolitan News Company