Opinion
2011 CA 0814
08-02-2012
DR. JERRY SANDERS AND BECK PARTNERS, LLC, d/b/a CYPRESS PSYCHIATRIC HOSPITAL v. STATE OF LOUISIANA, THROUGH DEPARTMENT OF HEALTH AND HOSPITALS, PATRICIA PITTMAN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, AND RENEE HULLINGER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY
Jill L. Craft Crystal G. LaFleur Baton Rouge, LA Attorneys for Plaintiffs-Appellants Dr. Jerry Sanders and Beck Partners, LLC, d/b/a Cypress Psychiatric Hospital James D. "Buddy" Caldwell Attorney General Andrew Blanchfield Special Assistant Attorney General Baton Rouge, LA Attorneys for Defendants-Appellees State of Louisiana, Department of Health and Hospitals, Patricia Pitt man and Renee Hullinger
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court
Parish of East Baton Rouge, Louisiana
Docket No. 552,583, Section 24
Honorable R. Michael Caldwell, Judge Presiding
Jill L. Craft
Crystal G. LaFleur
Baton Rouge, LA
Attorneys for
Plaintiffs-Appellants
Dr. Jerry Sanders and
Beck Partners, LLC, d/b/a
Cypress Psychiatric Hospital
James D. "Buddy" Caldwell
Attorney General
Andrew Blanchfield
Special Assistant Attorney General
Baton Rouge, LA
Attorneys for
Defendants-Appellees
State of Louisiana, Department of Health
and Hospitals, Patricia Pitt man and
Renee Hullinger
BEFORE: CARTER, C.J., PARRO, AND HIGGINBOTHAM, JJ.
PARRO, J.
Dr. Jerry Sanders and Beck Partners, LLC, d/b/a Cypress Psychiatric Hospital, (collectively, the plaintiffs) appeal a final judgment rendered in conformance with a jury verdict that dismissed their defamation claim against the State of Louisiana, Department of Health and Hospitals (DHH), Patricia Pittman, individually and in her official capacity as a DHH employee, and Renee Hullinger, individually and in her official capacity as a DHH employee. In connection with the appeal of that judgment, they also claim the trial court erred in granting a motion for summary judgment, which dismissed their civil rights complaints and various state law claims against the defendants. For the following reasons, we affirm the summary judgment and final judgment.
The judgment granting the motion for summary judgment as to some, but not all, of the plaintiffs' claims, is a partial judgment, pursuant to LSA-C.C.P. art. 1915(B). It is not a final judgment unless it is designated as such by the trial court after an express determination that there is no just reason for delay, which was not done in this case. Therefore, although the summary judgment was not independently and immediately appealable, once a final and appealable judgment was rendered, appellate review of the partial judgment became available in conjunction with that appeal. See People of Living God v. Chantilly Corp., 251 La. 943, 947-48, 207 So.2d 752, 753 (1968). The plaintiffs did not assign as error or brief the dismissal of their other state law claims.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Sanders is a licensed psychiatrist who, at the time this case was tried, had practiced in Louisiana for over 15 years. Beck Partners, LLC (Beck) is a minority-owned corporation in which Dr. Sanders, who is African-American, is the majority shareholder. Beck operates Cypress Psychiatric Hospital (Cypress) in Baton Rouge, Louisiana, which provides acute, inpatient psychiatric care for adults in a 30-bed environment. Dr. Sanders is the medical director of Cypress.
Under Louisiana's Hospital Licensing Law, LSA-R.S. 40:2100-2115, DHH is responsible for protecting the public health by developing, establishing, and enforcing standards for the patient care provided in hospitals and for regulating the operation and maintenance of hospitals in Louisiana. See LSA-R.S. 40:2100 and 2101. DHH issues state licenses to health care facilities in Louisiana and certifies those facilities for participation in Medicare and Medicaid. The federal agency in charge of Medicare services, Centers for Medicare and Medicaid Services (CMS), has contracted with DHH to conduct surveys of hospitals, such as Cypress. CMS issues Medicare provider numbers to hospitals that are in substantial compliance with all state and federal regulations.
Patricia Pittman, a registered nurse, was the program manager for hospitals with DHH from February 1997 until September 2007. Her duties as a medical certification program manager included processing applications for new hospitals and license renewals, investigating complaints, and supervising investigative surveys conducted by field officers. The types of surveys included initial licensing surveys, certification surveys, complaint surveys, follow-up surveys, and validation surveys. Renee Hullinger, who was also a registered nurse, was employed by DHH and had been since 1993, when she was hired as a medical certification specialist. During the relevant time periods, she was a medical certification program manager. Both of the program managers had authority to determine the timing and scope of investigations made by field surveyors, to prioritize investigations on the basis of the possible danger to patient care revealed by complaints, to determine which level to assign to any violations found during the surveys, to report survey results to their DHH superiors and to CMS, to supervise follow-up surveys to determine whether violations of regulatory standards had been remediated, and to recommend approval or revocation of state operating licenses and CMS certifications.
In November 2003, Dr. Sanders and Beck leased premises for a freestanding psychiatric hospital and in January 2004, submitted applications to DHH for its hospital license and Medicare certification. A complex process ensued, including multiple inspections and surveys required by law. On April 19, 2004, Cypress was issued a state license for 30 beds. The initial CMS survey in June 2004 turned up numerous discrepancies that had to be remedied, and after follow-up surveys were finally completed, a Medicare provider number was issued to Cypress on December 6, 2004.
The report from that survey contained 118 pages of detailed deficiencies.
The record shows that a number of complaints regarding Cypress were received and investigated by DHH during the next two years. Some were unsubstantiated, while others required remedial action by Cypress. Cypress's operating license was renewed in March 2005 and March 2006, indicating that it was in substantial compliance with all regulations. However, in May 2006, a survey was conducted in response to a complaint from an unidentified nurse at Cypress about numerous "elopements" of patients from the hospital premises, mistreatment of patients, and cover-ups by Cypress staff. Following this survey, Pittman and Hullinger recommended to DHH supervisors that Cypress's license be revoked for its continued inability to stay in substantial compliance with applicable standards and regulations. On July 12, 2006, Cypress was notified that its license was being revoked, effective thirty days from the date of the letter. Cypress exercised its right to suspensively appeal the revocation and continued in operation while the appeal was pending. Its CMS certification was not withdrawn, and its licenses were renewed by DHH in April 2007 and April 2008 with a notation on the license documents that the hospital's license revocation hearing was pending.
In January 2007, a complaint was lodged with DHH, alleging excessive use of medications and physical restraints, the use of chemical restraints, and sexual abuse of a patient by a Cypress employee. Due to the nature of the complaints and because other field surveyors were unavailable, Pittman and Hullinger conducted the survey, which lasted over a week and revealed a number of problems, including substantiation of the complaint of sexual abuse. They were assisted in this survey by Dr. Robert Detrinis, a psychiatric consultant, and Kristen Delabretonne, an investigator from the attorney general's office. Unknown to them, their interviews with hospital patients and staff and their discussions about the survey results were being recorded at the direction of Dr. Sanders, using a tape recorder hidden under the sink in the conference room.
Immediately upon learning about the possible sexual abuse of a patient by its employee, and before any survey by DHH, Cypress self-reported the potential criminal activity to the attorney general's office and to DHH.
Dr. Sanders and Beck filed this lawsuit on February 23, 2007, alleging that the defendants' actions constituted harassment, libel, slander, defamation, and conspiracy, as well as negligent, reckless, and intentional acts for which the defendants were liable under Louisiana law. They also alleged racially motivated violations of the plaintiffs' civil rights, including interference with the right to contract pursuant to 42 USC § 1981 (Section 1981), and violation of First Amendment rights of free speech and Fourteenth Amendment rights of due process and equal protection, made actionable by 42 USC § 1983 (Section 1983). In supplemental and amending petitions, they alleged that since the filing of the lawsuit, the defendants had conspired to continue a deliberate pattern and practice of harassment, including attempts to bring criminal charges against them; that these actions were malicious and racially motivated and were done in retaliation or reprisal against them for filing the lawsuit; and that these acts constituted obstruction of justice under Louisiana law and violations of their rights under 42 USC § 1985(2) and (3) (Section 1985).
Early in the discovery process, the defendants learned that the survey conducted by Pittman ------------and Hullinger in early 2007 had been recorded. They filed a motion in limine to exclude the audio tapes, any transcripts of the recordings, and any reference to the contents of the tapes during depositions and at trial. The motion was granted by the trial court after a hearing on February 9, 2009; the judgment was signed April 16, 2009, and the plaintiffs timely applied to this court for a supervisory writ. The writ was denied by this court on October 6, 2009.
In the meantime, the defendants had filed a motion for summary judgment on July 13, 2009, seeking dismissal of the plaintiffs' claims. It was granted in part in a judgment signed November 16, 2009, dismissing all of the racial discrimination and civil rights claims and all of the state law claims except defamation. The case went to a four-day jury trial on the defamation claim in November 2010. At the close of the plaintiffs' case, the defendants moved for a directed verdict, which was granted in part by the court, dismissing claims for pecuniary damages. At the conclusion of the trial, the jury returned with a verdict that the defendants had not defamed either of the plaintiffs. A judgment in accordance with this verdict, dismissing the plaintiffs' claims in their entirety and at their costs, was signed November 29, 2010. This appeal followed.
DISCUSSION
Admissibility of Audio Recording and Transcripts
In one of their assignments of error, the plaintiffs assert that the trial court erred in granting the defendants' motion in limine and refusing to allow tape recordings of the named defendants into evidence at trial. The plaintiffs argue that, as part of their defense to the plaintiffs' defamation claim, the defendants claimed they were in "good faith" in taking the actions they did, and that the tape recordings contain direct evidence of the defendants' lack of good faith. Therefore, they should have been admitted. The defendants point out that the probative value of the recordings and transcripts was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. They argue that the recordings were largely inaudible and unreliable, did not identify the participants or speakers, were not certified or authenticated, were made without the defendants' knowledge or consent, and were conducted in violation of regulations requiring that such interviews be conducted confidentially. Therefore, they claim neither the recordings nor the transcripts were admissible and that the trial court did not abuse its discretion in refusing to admit them into evidence.
Under LSA-C.C.P. art. 1636(C), the court's ruling on a motion in limine as to the inadmissibility of certain evidence is reviewable on appeal. Generally, all relevant evidence is admissible. LSA-C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. Whether evidence is relevant and admissible is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Boudreaux v. Mid-Continent Cas. Co., 05-2453 (La. App. 1st Cir. 11/3/06), 950 So.2d 839, 845, writ denied. 06-2775 (La. 1/26/07), 948 So.2d 171; Olivier v. LeJeune. 95-0053 (La. 2/28/96), 668 So.2d 347, 351 (discussing admissibility of a videotape).
In making its determination, the trial court should consider whether the tape accurately depicts what it purports to represent, tends to establish a relevant fact, and will aid the jury's understanding. The court should weigh against those factors whether the tape will unfairly prejudice or mislead the jury, confuse the issues, or cause undue delay. Malbrough v. Wallace, 594 So.2d 428, 431 (La. App. 1st Cir. 1991), writ denied. 596 So.2d 196 (La. 1992). The trial court may exclude the evidence if the factors favoring admission are substantially outweighed by the factors against admission. Ibieta v. Star Casino, Inc., 98-0314 (La. App. 4th Cir. 10/7/98), 720 So.2d 143, 147, writ denied. 98-2806 (La. 1/8/99), 735 So.2d 635; see LSA-C.E. art. 403.
After listening to the audio recording and reading the transcript(s), we find no abuse of the trial court's discretion in ruling that they were inadmissible. Neither the audio recording nor the transcript(s) identify the speakers. Various unidentified persons enter and leave the room, sometimes for reasons that appear unassociated with the survey. There seem to be substantial time g aps in the recording, particularly when the two women (apparently Pittman and Hullinger) mention that Dr. Detrinis will arrive in about an hour, and the next sounds on the recording about a minute later include his voice in the room. It is not possible to determine when and for how long the recording device may have been turned on or off or how much of the recording may have been edited or redacted in the transcript(s). There are innumerable instances of complete inaudibility, along with words and expressions in the transcripts that do not fit the context or make any sense, leaving the accuracy of the transcript(s) in question. The transcript(s), with many ellipses and notations of pauses and inaudible responses, are not very helpful and, in fact, are very likely to contain mistranslations of what was actually being said. The audio recording also has long periods of loud static, which completely overrides and obliterates the conversations. These problems make it virtually impossible to figure out what is going on during the interviews. Most importantly, with regard to relevance, although the recording and transcript(s) clearly indicate that Dr. Detrinis was confrontational in his interviews and that Pittman and Hullinger were displeased with Dr. Sanders and were trying to shut down Cypress, this does not establish malicious intent or a lack of good faith on their part. All of the women who spoke during the survey process, which, of course, included Pittman and Hullinger, were reasonable in their questions and observations. Moreover, Pittman and Hullinger had a duty to close any hospital which was not in substantial compliance with regulations and standards, and they obviously believed that Cypress needed to be closed for that reason. In fact, when the 2007 survey was conducted, DHH had already revoked Cypress's license. Under these circumstances, the trial court did not abuse its discretion in refusing to allow the audio recording and transcript(s) into evidence. Dismissal of Civil Rights Claims on Motion for Summary Judgment
We use the designation, "transcript(s)," because it is not possible to determine from the record whether there is only one transcript, portions of which are transcribed in different type styles, or whether there are several transcripts that were typed by different persons at different times.
The plaintiffs assign as error the trial court's granting of the defendants' motion for summary judgment and dismissing their civil rights claims. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co.. 06-363 (La. 11/29/06), 950 So.2d 544, 546; see LSA-C.C.P. art. 966. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Gisclair v. Bonneval. 04-2474 (La. App. 1st Cir. 12/22/05), 928 So.2d 39, 41. The burden of proof on summary judgment remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non- moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish Sch. Bd., 07-1856 (La. App. 1st Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied. 08-2316 (La. 11/21/08), 996 So.2d 1113; see also LSA-C.C.P. art. 967(B). Appellate courts review summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, namely, whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 137.
The plaintiffs alleged violations of their civil rights under Sections 1981, 1983, and 1985, claiming that the defendants singled them out for disparate treatment, held them to standards which do not exist at law or in practice, and continued to harass them on account of race and some unspecified prior political affiliation of Dr. Sanders. They claimed these acts impaired, interfered with, and violated their rights to make and enforce contracts, and thus violated Section 1981.
Section 1981(a) states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.With respect to Section 1981, the United States Supreme Court has explained that the provision was "meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race." Gratz v. Bollinger, 539 U.S. 244, 276 n.23, 123 S.Ct 2411, 2431 n.23, 156 L.Ed.2d 257 (2003), citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295-96, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Under the well-established framework set out by the Supreme Court, the plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 186-88, 109 S.Ct. 2363, 2377-79, 105 L.Ed.2d 132 (1989); Harrell v. Turner Industries. Ltd., 901 F.Supp. 1149, 1152 (M.D. La. 1995). The plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority, (2) the defendant intended to discriminate on the basis of race, and (3) the discrimination concerned one or more of the activities enumerated in the statute. Riley v. Transamerica Ins. Group Premier Ins. Co., 923 F.Supp. 882, 889 (E.D. La. 1996), aff'd, 117 F.3d 1416 (5th Cir. 1997). When the issue is before the court on a motion for summary judgment, once the mover meets its initial burden of proof, the court examines whether the plaintiff can prove a prima facie case, mindful that the plaintiff has to make a showing sufficient to establish the putative existence of every element at issue that is essential to his case. Davis v. Chevron U.S.A. Inc.. 14 F.3d 1082, 1084-85 (5th Cir. 1994). If he does not, there can be no genuine issue as to any material fact, because a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id., citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Harrell, 901 F.Supp. at 1153; see also LSA-C.C.P. arts. 966(C)(2) and 967(B).
In the defendants' motion for summary judgment, they alleged, among other things, that there was no evidence of racial discrimination or motivation by racial animus, which is one of the elements needed for the plaintiffs to establish a prima facie case under Section 1981. Having examined the pleadings and the documents submitted by both parties in connection with the motion for summary judgment, we conclude that Dr. Sanders and Beck offered only conclusory allegations to support their claim that the defendants were racially motivated or acted in a racially discriminatory manner when they surveyed Cypress and attempted to revoke its license and CMS certification. Most of the surveys in which Cypress was cited for numerous violations of regulations and standards were done by other field surveyors before Pittman and Hullinger ever set foot in the hospital. In fact, the decision to revoke its license had already been made before Pittman and Hullinger participated in a survey at Cypress. The plaintiffs produced no evidence that these surveys, on which the revocation decision was based, were racially motivated or that Pittman's or Hullinger's reviews of those surveys were tinged with racial animus. Other than their own statements that Cypress was cited for things for which other hospitals were not, the plaintiffs produced no evidence that Dr. Sanders and Beck were treated differently than similarly situated non-minorities engaged in running an acute care psychiatric hospital. Moreover, the record does not show that either Pittman or Hullinger made any racially biased comments to or concerning Dr. Sanders. Simply referring to him occasionally as "the black doctor" does not constitute a pejorative comment. When asked in a deposition why he had filed suit against Pittman and Hullinger, Dr. Sanders replied, "I think they're racist." A subjective belief of discrimination, no matter how genuine, cannot support a claim of discrimination. King v. Phelps Dunbar. LLP., 98-1805 (La. 6/4/99), 743 So.2d 181, 192 (Knoll, Justice, concurring in part). To establish a prima facie case under Section 1981, a plaintiff must produce direct or circumstantial evidence of purposeful discrimination by the defendant. Huang v. Louisiana State Bd. of Trustees for State Colleges and Univ., 99-2805 (La. App. 1st Cir. 12/22/00), 781 So.2d 1, 7. There is not a scintilla of evidence of direct, intentional racial discrimination. When the defendants pointed out in their motion for summary judgment that there was an absence of factual support for this necessary element of the plaintiffs' case, the plaintiffs were required to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof of racial discrimination at trial. Because the plaintiffs failed to provide direct or circumstantial evidence of purposeful discrimination by the defendants, the district court did not err in dismissing the Section 1981 claims.
The plaintiffs also claim the defendants violated their rights under the Fourteenth Amendment's due process clause and equal protection clause, as well as their protected speech pursuant to the First Amendment, giving rise to a cause of action under Section 1983. Section One of the Fourteenth Amendment to the United States Constitution provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.The First Amendment of the United States Constitution provides, in part, "Congress shall make no law ... abridging the freedom of speech." The remedy for violations of First and Fourteenth Amendment rights is found in Section 1983, which provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
A plaintiff has a cause of action under Section 1983 if he alleges that he has been deprived of a right secured by the Constitution by one acting under color of state law. Bank of New York Mellon v. Smith, 11-60 (La. App. 3rd Cir. 6/29/11), 71 So.3d 1034, 1042, writ denied, 11-2080 (La. 11/18/11), 75 So.3d 462. To claim the protections of due process, a claimant must show the existence of some property or liberty interest that has been adversely affected by state action. American Int'l Gaming Ass'n. Inc. v. Louisiana Riverboat Gaming Comm'n, 00-2864 (La. App. 1st Cir. 9/11/02), 838 So.2d 5, 16. A state-issued license can create a property interest in the holder, such that procedural due process is required in order for such a license to be revoked. See American Int'l Gaming, 838 So.2d at 16. The Fourteenth Amendment also provides that all persons are entitled to equal protection of the law, and requires that persons similarly situated receive like treatment. Whitnell v. Silverman. 95-0112 (La. 12/6/96), 686 So.2d 23, 29-30. However, the equal protection provisions do not require absolute equality or precisely equal advantages. Johansen v. Louisiana High School Athletic Ass'n. 04-0937 (La. App. 1st Cir. 6/29/05), 916 So.2d 1081, 1089. Therefore, to raise a valid equal protection challenge, the plaintiffs must show that the defendants' application and enforcement of the regulatory provisions at Cypress treated them differently from the owners of other similarly situated hospitals. See Whitnell. 686 So.2d at 30.
The plaintiffs acknowledge that DHH had the authority to conduct investigations and surveys at Cypress, but argue that the surveys were pretextual and exceeded the scope and manner of inspection allowed by law. They also claim that there was ample evidence that they were treated differently and that this treatment stemmed from a discriminatory intent, thus violating the constitutional guarantee of equal protection under the law. They argue that the defendants offered no explanation for their "fervent and express efforts" to cite the hospital for deficiencies and close it down. However, this argument misses the point. The defendants do not have to offer an explanation for their conduct until the plaintiffs have first established a prima facie case in support of their contentions. As noted with respect to the Section 1981 claims, the plaintiffs simply failed to do this. The record shows that most of the surveys were done in response to specific complaints to DHH from Cypress employees or patients. DHH did not always conduct on-site surveys of such complaints, as some of them were obviously the result of a patient's delusions. However, when surveyors investigated the more credible complaints, they often found deficiencies beyond the initial scope of the survey. The survey reports in the record demonstrate that problems existed and were discovered during the surveys. Some of these problems were minor; others were significant. All had to be pointed out to Cypress, so it could make necessary corrections. Cypress always had the opportunity to contest the findings or make changes in its procedures in order to regain its status of being in substantial compliance with the regulations and standards. Thus, the requirement of due process was not violated by the actions of DHH and its employees. Nor was a violation of equal protection shown by the evidence produced by the plaintiffs in connection with the motion for summary judgment. The plaintiffs make much of the fact that surveyors pointed out that Dr. Sanders' handwriting was sometimes difficult to read and that some of his prescriptions were unclear—criticisms that had not been made against him when he worked at other hospitals. They infer that these notations were made "at least in part for the purpose of causing an adverse effect on a minority-owned psychiatric hospital." This inference is not justified by the minor differences in treatment alleged by the plaintiffs. These differences certainly do not rise to the level of a denial of equal protection under the laws. Since the plaintiffs failed to satisfy their burden of proof on these issues on the motion for summary judgment, the district court did not err in dismissing their Fourteenth Amendment claims.
Although the plaintiffs allege that the defendants' actions violated and/or deprived Dr. Sanders of his rights under the First Amendment, there is no factual evidence demonstrating any attempted or actual interference with Dr. Sanders' rights to free speech. In their brief to this court, the plaintiffs claim the defendants attempted to "effectively revoke Dr. Sanders' license on account of his speech," but fail to show how his speech had anything to do with the defendants' actions at Cypress. Once again, the inferences far exceed the facts. The plaintiffs recite several instances when Dr. Sanders complained to the Secretary and Undersecretary of DHH, as well as to the CMS Region VI manager, of the harassment he felt was directed at him by allegedly racist DHH employees. Although the plaintiffs claim that retaliatory actions were taken immediately after such meetings, the record simply does not bear out this contention. The first revocation decision occurred in July 2006; Dr. Sanders met with the DHH officials after that decision, while the appeal was pending. Nothing was done to dissuade him from conversing with officials or from appealing the revocation decision, and, in fact, Cypress's license was renewed in 2007 and 2008. The plaintiffs failed to establish any causal link between Dr. Sanders' complaints to officials and the actions being taken by DHH in response to the surveys. Therefore, the First Amendment claims were properly dismissed on the motion for summary judgment.
The pertinent provisions of Section 1985 state:
If two or more persons in any State ... conspire ... on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.The plaintiffs allege that Pittman and Hullinger conspired to revoke Cypress's license because it was a minority-owned psychiatric facility. As previously noted, there is no evidentiary support for the claims of racial discrimination. The fact that these two people worked together at DHH and coordinated their efforts in order to carry out their responsibilities, does not establish a conspiracy to deny the equal protection of the law or to deprive anyone of his property. Therefore, the Section 1985 claim was properly dismissed on the motion for summary judgment. Dismissal of Defamation Claim after Jury Trial
Two of the plaintiffs' assignments of error deal with the jury instructions given by the court as to the elements of a defamation claim and the defense of conditional or qualified immunity. Louisiana Code of Civil Procedure article 1792(B) requires that a trial judge instruct the jury on the law applicable to the cause submitted to them. The trial judge is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law it deems inappropriate. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So.3d 507, 573. The question considered on review is whether the trial judge adequately instructed the jury. See Adams v. Rhodia. Inc., 07-2110 (La. 5/21/08), 983 So.2d 798, 804. Adequate jury instructions are those that fairly and reasonably point out the issues and provide correct principles of law for the jury to apply to those issues. An appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. Id.
In Adams, the Louisiana Supreme Court further noted that in the assessment of an allegedly erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges adequately provide the correct principles of law, as applied to the issues framed in the pleadings and the evidence, and whether the charges adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. Id. at 804. Because the adequacy of a jury instruction must be determined in the light of jury instructions as a whole, when small portions of the instructions are isolated from the context and are erroneous, error is not necessarily prejudicial. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Id. at 805. It is only when the jury verdict is based on instructions that are faulty in a critical regard that the verdict is tainted and not entitled to a presumption of regularity. See Dupuy v. Rodriguez, 620 So.2d 397, 399 (La. App. 1st Cir.), writ denied. 629 So.2d 352 (La. 1993).
The plaintiffs claim the district court erred in instructing the jury as follows:
A pure statement of opinion based totally on the speaker's subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation. The crucial difference between a statement of fact and opinion depends on whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion or as a statement of existing fact.They contend that since Pittman did not testify, the jury could not know whether anything she expressed at any time was meant to be a factual assertion or was just opinion. They further note that Hullinger was not asked whether any statements made by her were her opinion, as opposed to statements of fact. Therefore the "opinion" instruction was unnecessary under the evidence adduced, and it tended to mislead the jury. The record shows that when this objection was made by counsel to the district court, the court responded that the opinion instruction was directed to a statement made by DHH spokesman Bob Johanesson to a reporter for WAFB television, in which he stated that DHH had received a "litany of complaints" about Cypress. The court explained that whether the number of complaints received might constitute a "litany" was a matter of opinion; therefore, the opinion instruction was given. Having reviewed the jury instructions as a whole, we find that the district court adequately charged the jury concerning the elements of defamation. The opinion charge was an accurate statement of the law and, although directed at a very narrow fact in evidence, was relevant to the jury's deliberations on the defamation issue and was not misleading.
The other jury instruction to which the plaintiffs object concerned the defense of conditional privilege, as follows:
In Louisiana, a privilege is a defense to a defamation action. One who makes an otherwise defamatory statement, enjoys a conditional privilege upon establishing that he or she made that statement in good faith, on a matter in which he or she had an interest or duty, and the statement was made to another person with a corresponding interest or duty. A statement is made in good faith when in [sic] it is made with reasonable grounds for believing it is true. The defendants must prove, by a preponderance of the evidence, that any defamatory statements they may have made are subject to that privilege.Plaintiffs' counsel objected to this instruction by the trial court, because Pittman did not testify and the issue of good faith or the lack of it was not brought up with Hullinger. Plaintiffs' counsel also told the trial court that she did not recall any evidence about either of them having an interest or duty concerning any particular statement or that the recipient of the statement had a corresponding interest or duty. The court explained that the privilege was directed to letters that were sent by Hullinger to the Louisiana State Board of Medical Examiners and the Louisiana State Board of Nursing, stating that attached information from the February 2007 onsite survey at Cypress was being sent to those boards for their "consideration and action."
In Louisiana, privilege is a defense to a defamation action. See Costello, 864 So.2d at 141. The policy underpinnings of the conditional privilege are the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 744, citing Toomer v. Breaux, 146 So.2d 723, 725 (La. App. 3rd Cir. 1962). There are a variety of situations in which the interest that an individual is seeking to vindicate or to further is regarded as sufficiently important to justify some latitude for making mistakes so that publication of defamatory statements is deemed to be conditionally or qualifiedly privileged. Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 563. The elements of the conditional privilege have been described as "good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only." Madison v. Bolton, 234 La. 997, 102 So.2d 433, 439 n.7 (1958). In Smith. 639 So.2d at 745, the Louisiana Supreme Court clarified that the analysis for determining whether a conditional privilege exists involves a two-step process. First, it must be determined whether the attending circumstances of a communication occasion a qualified privilege. The second step is a determination of whether the privilege was abused, which requires that the grounds for abuse—malice or lack of good faith—be examined. This step is generally a fact question for the jury. Id.; Kennedy v. Sheriff of East Baton Rouge. 05-1418 (La. 7/10/06), 935 So.2d 669, 680-83.
In the present case, the defendants asserted the affirmative defense of qualified or conditional privilege in their answer to the petition, averring that "any action taken by them was reasonable, justified and necessary, given the plaintiffs' conduct and circumstances surrounding the business of [Cypress]." The defendants contend that the qualified or conditional privilege being claimed is that DHH and its employees, who had a duty to protect patient welfare, were simply communicating suspected wrongful acts to officials authorized to protect the public from such acts. In the Smith case, the supreme court was dealing with the question of whether a statutory conditional immunity shielded the defendants from liability for allegedly defamatory statements made during a peer review process that resulted in the termination of a surgeon's hospital privileges. Smith. 639 So.2d at 734-35. Although the matter before us does not involve the peer review process, the duty of DHH to investigate and assure the compliance of hospitals with regulations intended to protect patients is similar to the duty of a peer review committee to protect the welfare of patients in their hospitals by reviewing the actions of physicians practicing there. As stated in Smith, "[i]f a conditional privilege should ever operate, indeed if there is one instance where society should encourage uninhibited communication, it is in the review of the competency of medical professionals." Smith, 639 So.2d at 744, citing Sibley v. Lutheran Hosp. of Maryland, Inc., 871 F.2d 479, 484 (4th Cir. 1989).
Given the facts and circumstances of this case, the court did not err in instructing the jury concerning the defense of qualified or conditional privilege. One of the plaintiffs' contentions was that the letters sent to the Louisiana State Board of Medical Examiners and the Louisiana State Board of Nursing were evidence of the defendants' discriminatory and malicious intent against Dr. Sanders and Beck. One of the defenses was that those communications were made in good faith by DHH and its employees, who had an interest in and a duty to protect patient safety, to officials charged with that same interest and duty. Another claim was that the defendants had defamed the plaintiffs by informing the Chief Executive Officer of Baton Rouge Medical Center that Cypress's license had been revoked, and an appeal was pending. One of the defenses to that claim was that the statements were true; the other was that they were communications from one party with a duty to safeguard the wellbeing of patients to another party with the same duty and interest. Therefore, the question of whether the defendants had or abused a conditional privilege certainly was a relevant issue and one that the jury had to decide, based on all the evidence in the case. We conclude that the district court did not err in instructing the jury on the elements of this defense to defamation.
Finally, the plaintiffs assert that the jury verdict was "clearly contrary to the law and the evidence." Having reviewed the law and the evidence presented, both in connection with the motion for summary judgment and at the trial, we disagree with this contention. The plaintiffs simply failed to establish a prima facie case of racial discrimination, denial of due process, denial of equal protection under the law, denial of free speech, or conspiracy to perform such actions. Therefore, the court correctly dismissed the civil rights claims on the motion for summary judgment. The court clearly and correctly explained the law of defamation and the defenses to that claim to the jury. The jury's verdict could reflect that they believed the allegedly defamatory statements were true or that the statements were made in good faith from persons having a duty and interest in patient protection to others who shared that duty with respect to Cypress and the plaintiffs. The trial transcript contains evidence to support either conclusion, both of which would defeat the plaintiffs' defamation claims.
CONCLUSION
For the above reasons, we affirm the November 16, 2009 judgment dismissing the plaintiffs' racial discrimination and civil rights claims and all other state claims except defamation, and we also affirm the November 29, 2010 judgment in accordance with the jury verdict, dismissing the plaintiffs' defamation claims. All costs of this appeal are assessed to the plaintiffs/appellants, Dr. Jerry Sanders and Beck Partners, LLC, d/b/a Cypress Psychiatric Hospital.
AFFIRMED.