Opinion
January 20, 1975
In an action to recover damages for libel, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered October 5, 1973, in favor of defendant upon the dismissal of the complaint at the outset of trial. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The appeal presented no questions of fact. Plaintiff alleged that she had retained the defendant physician to deliver her child in 1968. The child died two hours after delivery and an autopsy was performed several days later, on August 26, 1968. The written statement attributed to this defendant was added to the autopsy report on September 11, 1968. It accused plaintiff of possession of LSD, an hallucinogenic drug. Such possession is, by itself, a crime. Contrary to the trial court's statement, it was not necessary to allege possession with intent to sell. The statement was libelous per se and, hence, actionable without proof of special damages ( Klinck v. Colby, 46 N.Y. 427, 430-431; Moore v. Francis, 121 N.Y. 199, 202-203). We are of the view, however, that an absolute privilege might attach to the statement. Depending upon the circumstances under which the autopsy was ordered and held, it could be considered the start of a judicial proceeding (See Public Health Law, § 4210; Administrative Code of City of New York, § 878 1.0 et seq.; cf. Wiener v. Weintraub, 22 N.Y.2d 330). This should be explored at the new trial. Additionally, a qualified privilege may be available to this defendant under the guidelines set forth in Shapiro v. Health Ins. Plan of Greater N.Y. ( 7 N.Y.2d 56, 60-61). Hopkins, Acting P.J., Latham, Cohalan, Brennan and Shapiro, JJ., concur.