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06/12/95 BARRY HARLEM CORPORATION v. MANUS C. KRAFF

June 12, 1995

BARRY HARLEM CORPORATION, D/B/A THE DESNICK EYE CENTER, PLAINTIFF-APPELLANT,
v.
MANUS C. KRAFF, M.D., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Stephen Schiller, Judge Presiding.

Rehearing Denied July 13, 1995.

The Honorable Justice Buckley delivered the opinion of the court: Campbell, P.j. and Wolfson, J., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, Barry Harlem Corporation, d/b/a The Desnick Eye Center, filed suit against defendant, Dr. Manus C. Kraff, for an allegedly defamatory statement defendant published. The trial court dismissed plaintiff's complaint. It dismissed count I (defamation per se) with prejudice, and dismissed count II (defamation per quod) and count III (commercial disparagement) without prejudice. Plaintiff elected to stand on the complaint and did not file an amended complaint. The trial court dismissed the case in its entirely with prejudice on September 22, 1992. Plaintiff filed this appeal alleging that the trial court erred: (1) in dismissing count I because the commentary accused plaintiff of performing unsafe medical procedures and advertising those procedures to procure patients; (2) in holding that the statements in the commentary were nonactionable opinion; (3) in finding that the fair comment and criticism privilege exists in Illinois and that the facts of this case support it; and (4) in dismissing count I because its complaint set forth a well-pleaded claim for libel per se.

Plaintiff treats eye disorders and in the winter of 1991, began a widespread advertising campaign of no-stitch cataract surgery. According to plaintiff, it was the only ambulatory center in the Chicago area to advertise the procedure and to perform this type of surgery.

Defendant is an ophthalmologist and a competitor of plaintiff. He published a commentary in his eye institute's newsletter which was distributed throughout the Chicago area. Plaintiff filed a three-count complaint alleging that the commentary defamed plaintiff. Defendant filed a section 2-615 motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992))) which the trial court granted. The commentary in full stated:

"[1] Currently, there is much marketing which includes the advertising of no stitch cataract surgery in the lay media, particularly newspapers, television and radio. [2] There are no current masked double blind published studies showing any advantage of no stitch over conventional surgery that uses stitches to close the wound. [3] The main advantage that I can see of no stitch surgery, at the present time is one of advertising. [4] I certainly would encourage a scientific study to evaluate the alleged advantages of no stitch, one stitch or multiple stitch procedures. [5] This should be done in an unbiased scientific manner and not marketed in the mass media with the intent of stimulating patient procurement. [6] The patient does not have the scientific background to make the decision about a highly specific surgical technique. [7] This decision should be made by the ophthalmologist and discussed with the patient.

[8] Until these studies can be performed comparing the benefits and the risk of no stitch surgery, verses the conventional newer methods of fine microscopic sutures, I see no need to perform this type of surgery as it may have an adverse affect on patients."

The first issue is whether the trial court erred in finding that the commentary was not defamatory per se.

A statement is defamatory if it tends to cause harm to the reputation of another such that it lowers that person in the eyes of the community or deters third persons from associating with him or her. ( May v. Myers (1993), 254 Ill. App. 3d 210, 626 N.E.2d 725, 193 Ill. Dec. 415.) When the defamatory character is apparent on the face of the statement, it is defamatory per se. Such statements generally fall within one of four classifications, only two of which are implicated here: (1) statements which impute inability to perform or want of integrity in discharging the duties of one's office or employment, and (2) statements which prejudice a party or impute lack of ability in trade, profession, or business. ( Mittelman v. Witous (1989), 135 Ill. 2d 220, 238-39, 552 N.E.2d 973, 982, 142 Ill. Dec. 232.) Per se statements are so obviously and materially harmful to plaintiff that injury to his or her reputation may be presumed. May, 254 Ill. App. 3d at 213, 626 N.E.2d at 727.

Plaintiff contends that the commentary accused it of fraud in procuring patients and in using unsafe and negligent medical techniques which were unproven. Based on the implications, context, and plain meaning, the commentary defames plaintiff. It argues that its complaint pled sufficient facts to demonstrate that the commentary was of and concerning plaintiff. The complaint states that plaintiff was the only ambulatory surgical center in Chicago performing no-stitch cataract surgery, that it was the only center to perform this type of surgery, and that it was the only center advertising the procedure. Because of these circumstances, reasonable third persons reading the commentary would know that the statements were about The Desnick Eye Center.

Defendant argues that the thrust of his commentary was to encourage a scientific study. The commentary was not about plaintiff, but about the no-stitch procedure. He contends that plaintiff has pled insufficient facts to show the commentary was about plaintiff. The complaint made no claim that plaintiff alone used or advertised the procedure; the complaint merely stated that plaintiff was the only "ambulatory" center to do so. The commentary did not expressly name plaintiff nor did it indirectly identify it. Because plaintiff relies on facts outside the commentary to show that it 'refers to plaintiff, the commentary is not defamatory per se.

A statement which does not mention the plaintiff by name cannot be injurious to him or her on its face. Extrinsic facts and circumstances must be pled to establish that the publication is defamatoryto him. ( Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731, 554 N.E.2d 988, 991, 143 Ill. Dec. 916.) The commentary did not mention plaintiff by name. It did not refer to "another eye center or institute," another medical provider, or any one of this nature. The commentary did not refer ...


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