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Savarirayan v. English

OPINION FILED JANUARY 20, 1977.

FRANCIS J. SAVARIRAYAN, PLAINTIFF-APPELLANT,

v.

HARLAN ENGLISH ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Vermilion County; the Hon. PAUL M. WRIGHT, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

No reviewing court in Illinois has apparently been called upon before to rule on the issue presented here. Quaere: Can federally employed medical specialists make slanderous or libelous statements about a colleague's professional capacity with immunity from common law liability?

The short answer: Yes, under the circumstances in the case at bar. Now to the long answer.

The undisputed facts unfold as follows. Dr. English and Dr. Taylor were both practicing urologists in Danville and had served as consulting urologists to the Veterans Administration Hospital in that city on a contractual basis for a number of years — English for 11 years, and Taylor for 19. Part of their duties as consulting urologists was to evaluate the quality of medical service being rendered by the urology section at that institution. On August 19, 1973, the appellant, Dr. Savarirayan, came to the Veterans Hospital and commenced his duties as Chief of the Urology Section.

During the ensuing six months numerous complaints were made about appellant's capabilities and the consulting urologists reported to the Chief of Staff, Dr. Kannapel, of Dr. Savarirayan's lack of professional competence, his inability to work in harmony with hospital personnel, to communicate with patients, and to supervise other doctors. Further, they complained that the appellant was incompetent as a specialist in urology, was too slow in surgery, was unable to perform major surgery and was incapable of performing surgery without assistance of other doctors.

In February 1974, Dr. Kannapel issued written instructions to the appellant not to perform major urological surgery without a urological consultant attending. And in July 1974, the Chief of Staff counseled with Dr. Savarirayan and informed him that he would be discharged unless there was "significant improvement in his professional performance." Also during this period, the Urology Department of Rush-Presbyterian-St. Luke's Medical Center in Chicago advised the Chief of Staff, Dr. Kannapel, that appellant's professional performance was substandard and unless it improved the residency program in urology with the Danville VA Hospital would be discontinued.

On January 31, 1975, Dr. Savarirayan resigned and thereafter brought this suit for damages charging that the libelous and slanderous statements of Drs. English and Taylor humiliated him, undermined his professional standing and forced him to resign his position. Dr. Savarirayan further alleged that personal malice prompted them to defame him.

The trial court judge took the case on a motion to dismiss, supported by uncontroverted affidavits, heard extensive arguments, granted the motion and struck the case. This appeal was the result.

• 1 It is well settled that the issue of immunity of Federal officials acting in the course of their employment is governed by Federal law. "At the outset," said the U.S. Supreme Court in Howard v. Lyons (1959), 360 U.S. 593, 597, 3 L.Ed.2d 1454, 1457, 79 S.Ct. 1331, in squarely facing this question,

"* * * The authority of a federal officer to act derives from federal sources, and the rule which recognizes a privilege under appropriate circumstances as to statements made in the course of duty is one designed to promote the effective functioning of the Federal Government. No subject could be one of more peculiarly federal concern, and it would deny the very considerations which give the rule of privilege its being to leave determination of its extent to the vagaries of the laws of the several States. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 87 L.Ed. 838, 63 S.Ct. 573. We hold that the validity of petitioner's claim of absolute privilege must be judged by federal standards, to be formulated by the courts in the absence of legislative action by Congress."

• 2 The doctrine of absolute immunity surrounding Federal officials was reconfirmed and clearly delineated in Barr v. Matteo (1959), 360 U.S. 564, 3 L.Ed.2d 1434, 79 S.Ct. 1335. In that case the acting director of the Office of Rent Stabilization issued a press release indicating his intention to suspend the respondents because of the part they played in a plan to utilize certain agency funds. Respondents claimed the release to be libelous and sued. The verdict in their favor was reversed and in so doing the court said:

"That petitioner was not required [emphasis in original] by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.

The fact that the action here taken was within the outer perimeter of petitioner's line of duty [emphasis added] is enough to render the privilege applicable, despite the allegations of malice in the complaint * * *." ...


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