Sethi v. Wfmj Television Inc. , 134 Ohio App. 3d 796 ( 1999 )

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OPINION This matter presents a timely appeal from a decision rendered by the Mahoning County Common Pleas Court, granting summary judgment in favor of defendants-appellees, WFMJ Television Inc., et al.

The within action arose as a result of certain news reports which were broadcast by appellees on February 8, 1993 and February 9, 1993. Prior to February of 1993, defendant-appellee, Ernest Freeman (Freeman), a news reporter for defendant-appellee, WFMJ Television, Inc., read a news account concerning a report compiled by the Public Citizen Health Research Group in Washington, D.C. Such report concluded that state medical boards were lax in disciplining negligent doctors. (Freeman Depo. 23). Freeman believed this report to be of public interest, desired to localize the story and thereby obtained permission to investigate same from his assignment director, Sheila Patrick. (Freeman Depo. 28). Freeman contacted the Public Citizen Health Research Group for information on February 5, 1993. (Freeman Depo. 28-29). Freeman further contacted the Ohio State Medical Board and attempted to interview a local Board member, Dr. Anand Garg. (Freeman Depo. 47-48).

On the same day, Lana Stull telephoned WFMJ and spoke with the assignment director about a complaint that she had filed with the Ohio State Medical Board concerning local doctors, upon which the Board determined that it would take no action. (Freeman Depo. 53). Ms. Stull stated that she had subsequently filed medical malpractice claims against the local doctors involved in her treatment. (Freeman Depo. 56).

Ms. Stull then appeared at WFMJ on February 5, 1993 for an interview with Freeman, bringing with her copies of complaints which she filed against plaintiff-appellant, Usha Sethi, M.D., and Dr. Renato Simon, along with medical records attached as exhibits to her complaints. (Freeman Depo. 60). Ms. Stull's malpractice claim against appellant, Usha Sethi, M.D., a local doctor who was board certified in obstetrics and gynecology, was filed in 1992. Ms. Stull alleged that appellant, Usha Sethi, M.D., had purportedly removed her right ovary in a surgical procedure, however, medical tests taken at a later date indicated that the ovary was still in place. Freeman stated that he did not form any conclusion concerning whether Ms. Stull's right ovary was or was not in place. (Freeman Depo. 90-92)

Following his discussion with Ms. Stull, Freeman examined the case files located in the court clerk's office relating to the complaints filed against appellant, Usha Sethi, M.D., and Dr. Renato Simon. (Freeman Depo. 62-64). Freeman thereafter attempted to contact appellant, Usha Sethi, M.D., but was informed that she was in surgery and thus, was unavailable to speak with him. (Freeman Depo. 79-80; U. Sethi Depo. 114). Freeman stated that after he made further efforts to speak with both appellant, Usha Sethi, M.D. and Dr. Simon on February 8, 1993 to no avail, the decision was made to broadcast his story. (Freeman Depo. 143-145).

The first news report was broadcast on February 8, 1993 and focused primarily upon the report of the Public Citizen Health Research Group. Freeman did point to Ms. Stull's medical concerns by indicating that she claimed "her doctor told her she had performed a successful surgical procedure only to find out later it had not been done." The broadcast included an excerpt from Freeman's interview with Lana Stull, wherein she stated:

"I turned her in to the State Medical Board in Columbus. And they'd had the papers for about seven months, and I got a letter back stating they didn't think she had done anything wrong and thanked me for informing them."

Freeman also pointed out in this broadcast that Dr. Anand Garg was a local member of the Ohio State Medical Board and that he repeatedly had no comment to offer regarding Freeman's inquiries about disciplinary procedures for negligent doctors. No doctor, other than Dr. Garg, was mentioned by name.

The following morning, legal counsel for appellant, Usha Sethi, M.D., contacted WFMJ to request a taped copy of the February 8, 1993 news broadcast and to inform WFMJ that he had advised Dr. Sethi not to speak with Freeman concerning his news report. (Freeman Depo. 145-146).

The second segment of Freeman's news report was broadcast on February 9, 1993 and mentioned both appellant, Usha Sethi, M.D. and Dr. Simon. The February 9, 1993 broadcast began with opening remarks from the news anchorpersons, reminding the viewing audience that the topic at issue was medical negligence. Following such remarks, the report then turned to Freeman's interview with Lana Stull and the following colloquy:

"ERNIE FREEMAN: * * * This woman alleges she's a victim of medical negligence. In 1990, she went to Boardman doctor Usha Sethi to have an ovary removed.

"LANA STULL: She told me that she had removed the ovary and cyst and I wouldn't have any more problems and a few months down the road I started having the same problems.

"ERNIE FREEMAN: Medical records show Dr. Sethi removed Stull's right tube and ovary in November of 1990, but in an examination less than one year later, medical records showed both of Stull's ovaries are well demonstrated and normal in size.

"LANA STULL: And it showed that I still had both ovaries, that cyst on the left ovary, everything.

"ERNIE FREEMAN: Then in January of 1992, Dr. Renato Simon of Liberty supposedly removes Mrs. Stull's left ovary.

"LANA STULL: I was kind of leery about what he had done and I had problems right away. I had two ultrasounds done after him that showed I still had both ovaries and the cyst.

"ERNIE FREEMAN: At this point, Stull said she contacted the State Medical Board. She said it told her the doctors had done nothing wrong. Yesterday we tried talking with Doctor Garg, a State Medical Board member about how investigations are conducted. He had no comment. On Friday, we contacted Dr. Sethi's office. She was unavailable. * * *

"* * *

"Although none of the doctors would talk to us about why both of Mrs. Stull's ovaries are still in place today, they might have to talk in court because Mrs. Stull has filed malpractice suits against both of them."

On February 8, 1994, appellant, Usha Sethi, M.D., along with plaintiffs-appellants, V.K. Sethi, M.D., Neil Sethi and Drs. Sethi, Inc. filed a complaint against appellees. Appellants alleged in their complaint that the broadcasts at issue defamed Usha Sethi, M.D. The complaint further alleged that the statement made during the broadcast to the effect that Dr. Sethi did not want to speak with appellees about the matter at hand, constituted an intentional and malicious falsehood.

V.K. Sethi, M.D., a local doctor board certified in pediatrics and the husband and business partner of Usha Sethi, M.D., individually alleged that he suffered personal damages as a result of the defamation of his wife. Neil Sethi individually alleged that he suffered personal humiliation and mental anguish as a result of the defamation of his mother, Usha Sethi, M.D. It was also alleged by Drs. Sethi, Inc., an Ohio professional corporation under which both Usha Sethi, M.D. and V.K. Sethi, M.D. conducted their business, that economic loss was suffered as a result of the alleged defamation of Usha Sethi, M.D.

Appellees filed an answer denying that the broadcasts in question were false or defamatory concerning Usha Sethi, M.D. and specifically asserting that the subject broadcasts were true or substantially true, were privileged and were made without actual malice. Following discovery, appellees filed a motion for summary judgment on November 20, 1996 arguing that: (1) Ohio law does not recognize derivative claims for defamation and thus, the claims of V.K. Sethi, M.D., Neil Sethi and Drs. Sethi, Inc. must fail as a matter of law; (2) the February 8, 1993 broadcast was not "of and concerning" Usha Sethi, M.D. and therefore, no defamation claim could exist for such broadcast; (3) the subject broadcasts were privileged under R.C. 2317.05 as being fair and impartial reports of documents filed in a pending civil action; and (4) the broadcasts were susceptible to an innocent, rather than defamatory, construction.

On October 17, 1997, the trial court filed its judgment entry, sustaining appellees' motion for summary judgment and specifically finding:

"The communications which are the subject of Plaintiffs' action in defamation do not, as a matter of law, support such action.

"The Defendants' broadcast of February 8, 1993 does not mention the Plaintiffs and provided no basis to conclude that any statement was made of and concerning the Plaintiffs.

"The content of Defendants' broadcast of February 9, 1993 has not been shown to be anything other than a fair and impartial report of the contents of documents in a judicial proceeding entitled to the privilege set forth at R.C. Section 2317.05. The statement that Plaintiff was unavailable to comment was substantially true."

It is from this decision that the within appeal emanates.

Appellants' sole assignment of error on appeal alleges:

"The trial court erred as a matter of law in granting. Appellees' Motion for Summary Judgment."

In determining whether a trial court has properly granted summary judgment, a court of appeals must conduct a de novo review of the record. Grafton v. Ohio Edison Company (1996),77 Ohio St.3d 102.

Civ.R. 56 (C) recites, in pertinent part:

"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

As set forth by the Ohio Supreme Court in Welco Industries,Inc. v. Applied Companies (1993), 67 Ohio St.3d 344, 346:

"Under Civ.R. 56, summary judgment is proper when "(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.' (Citation omitted). Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party. (Citation omitted)."

The Ohio Supreme Court in Dresher v. Burt (1996), 75 Ohio St.3d 280, has held that a moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56 (C) which affirmatively demonstrates that the nonmoving party has no evidence to support its claims.

The Ohio Supreme Court in Dresher, supra further held that once the moving party has met its initial burden, the nonmoving party must then produce any evidence for which such party bears the burden of production at trial.

In a claim for libel, a plaintiff must establish that (1) a false statement of fact was made concerning him or her; (2) the statement was defamatory; (3) the statement was written; (4) the statement was published; and, (5) in publishing the statement, the defendant acted with the requisite degree of fault. Bruss v.Vindicator Printing Co. (1996), 109 Ohio App.3d 396 citing toHersch v. E.W. Scripps Co. (1981). 3 Ohio App.3d 367.

Summary judgment is appropriate in defamation actions because the determination of whether words are defamatory or not is a question of law to be decided by the court. Vail v. The PlainDealer Publishing Co. (1995), 72 Ohio St.3d 279. To survive a motion for summary judgment in a defamation action, the plaintiff must make a sufficient showing of the existence of every element essential to his or her case. (See Celotex Corp. v. Catrett (1986), 477 U.S. 317)

In matters involving defamation of private persons against the media, such as in the case at bar, Ohio law provides that a plaintiff must first establish that the statements are defamatory and thereafter, must prove actual injury and some degree of fault on the part of the media. Gertz v. Robert Welch, Inc. (1974),418 U.S. 323.

Appellants set forth several sub-arguments under their sole assignment of error. Appellants maintain that the broadcasts at issue were "of and concerning" appellant, Usha Sethi, M.D.; that such broadcasts were defamatory to Dr. Sethi; that the innocent construction rule is not applicable to the statements in question; that such statements were not privileged pursuant to R.C. 2317.05; and, that V.K. Sethi, Neil Sethi and Drs. Sethi, Inc. had viable claims based upon the alleged defamation of appellant, Usha Sethi, M.D.

Appellants state that the defamation against appellant, Usha Sethi, M.D., had three facets: (1) appellees reported that Lana Stull, a former patient of Dr. Sethi and a plaintiff in a pending medical malpractice suit against Dr. Sethi, still had two ovaries in place even though Dr. Sethi performed surgery on her and removed the right ovary as confirmed by operative and pathology reports from St. Elizabeth Hospital Medical Center; (2) appellees used Dr. Sethi's treatment of Lana Stull as an example for their report about medical board laxity in disciplining "bad doctors" and in doing so labeled her as an "unfit", "incompetent", "negligent" and "potentially deadly" doctor warranting medical board discipline; and, (3) appellees inaccurately reported that Dr. Sethi would not talk to them about the Lana Stull lawsuit. Thus, appellants argue that the trial court erred in granting summary judgment in favor of appellees.

The trial court specifically found that the news broadcast of February 8, 1993 was not "of and concerning" appellant, Usha Sethi, M.D. However, the trial court did not expressly indicate whether the February 9, 1993 broadcast was "of and concerning" said appellant, choosing instead to address that broadcast in another manner.

Appellants complain that the trial court erred in failing to consider the broadcasts as a series even though appellees' news director, Art Jordan, stated that each broadcast must be viewed in the context of the whole news report. (Jordan Depo. 43-44, 64). Appellants submit that although appellant, Usha Sethi, M.D., was not directly named in the broadcast of February 8, 1993, the excerpt from the interview with Lana Stull clearly referred to Dr. Sethi.

Appellants argue that the broadcast of February 9, 1993 utilized adjectives such as "unfit", "incompetent", "negligent" and "bad" to describe the type of doctor whom appellees claimed was allowed to practice and endanger the public due to medical board laxity. Appellant, Usha Sethi, M.D. was specifically mentioned in this broadcast in relation to a medical malpractice action brought against her by Lana Stull. Appellants maintain that in considering the two segments in the context of the whole news story, there is no question that both broadcasts were "of and concerning" appellant, Usha Sethi, M.D.

Considering the broadcasts of February 8, 1993 and February 9, 1993 in the context of the whole news story, which is the manner in which appellees concede they should have been viewed, it is clear that such broadcasts were "of and concerning" appellant, Usha Sethi, M.D., at least in part. Although Dr. Sethi's name was not provided in the first broadcast, the excerpt from the interview with Lana Stull referred to her and she was specifically named in the second broadcast relative to her treatment of Ms. Stull. Clearly, the second broadcast was part of the continuing news story which began on February 8, 1993. However, while it may have been error for the trial court to conclude that because the broadcast of February 8, 1993 did not mention Dr. Sethi, any statements made therein were not "of and concerning" her, such error was harmless in light of further analysis concerning whether the statements complained of by appellants were defamatory.

Appellants further aver that the news broadcasts in question constituted statements of fact and were defamatory as a matter of law. Appellants urge that when determining whether the statements in the subject broadcasts were constitutionally protected opinion, the totality of the circumstances test as set forth inVail, supra should be applied. Particularly, appellants state that we should consider the specific language at issue, whether the statements were verifiable, the general context of the statements and the broader context in which the statements appeared. Vail, supra .

Appellants then engage in a lengthy discussion addressing each prong of the test enunciated in Vail in conjunction with the factual scenario presented in this case. However, appellees did not assert constitutionally protected opinion as a basis for summary judgment and have conceded that the subject broadcasts presented statements of fact. Thus, appellants' discussion is superfluous and we need only determine whether the statements in question were defamatory as to appellant, Usha Sethi, M.D.

In the February 9, 1993 broadcast, Freeman closed the news story by stating, "Although none of the doctors would talk to us about why both of Mrs. Stull's ovaries are still in place today, they might have to talk in court because Mrs. Stull has filed malpractice suits against both of them." Appellants submit that this statement portrayed appellant, Usha Sethi, M.D., as a physician guilty of medical malpractice when it was reported that she performed a surgery to remove Ms. Stull's ovary.

Appellants state that the plain import of the language contained within the broadcasts in question constituted defamatory statements as applied to appellant, Usha Sethi, M.D., particularly when viewed in the context of the broadcasts as a whole and in light of the use of Dr. Sethi as an example of state medical board laxity in disciplining medical negligence. Appellants believe a reasonable viewer of the broadcasts would understand that all adjectives used by appellees in describing doctors deserving of medical board discipline also applied to Dr. Sethi. Therefore, appellants contend that the subject broadcasts were presented by appellees in such a manner as to provide a reasonable viewer with the understanding that appellant, Usha Sethi, M.D., was an unfit, incompetent, potentially deadly and negligent doctor whom the medical board should have disciplined.

Although the statement made by Lana Stull in the broadcast of February 8, 1993 indirectly referred to appellant, Usha Sethi, M.D., same was not defamatory to her as it was true or substantially true. Dr. Sethi admitted in her deposition that Ms. Stull's statements on February 8, 1993, which indicated she had filed a complaint with the state medical board and the state medical board made no finding of wrongdoing on Dr. Sethi's part, were both true. (U. Sethi Depo. 133-134). In fact, Dr. Sethi stated that the only statement which she could claim referred to her on February 8, 1993 was in actuality, favorable to her. (U. Sethi Depo. 133-134).

With regards to the broadcast of February 9, 1993, it is clear that none of the adjectives complained of by appellants were utilized to describe or otherwise directly refer to appellant, Usha Sethi, M.D. Therefore, any alleged defamation of Dr. Sethi must be a matter of interpretation, rather than by direct statement.

The Ohio Supreme Court in Ed Schory Sons, Inc., et al., v.Society National Bank, et al. (1996), 75 Ohio St.3d 433, 445, pronounced:

"In Ohio, truth is a complete defense to a claim for defamation. R.C. 2739.02 states: ``In an action for a libel or a slander, the defendant may allege and prove the truth of the matter charged as defamatory. Proof of the truth thereof shall be considered a complete defense. * * *'."

Both broadcasts in question described the results of the Public Citizen report which found that many negligent, unfit and incompetent doctors go unpunished by state medical boards. The broadcast of February 8, 1993 indicated that very "few disciplinary actions were taken against area doctors; just seven." This broadcast focused primarily on the report issued by Public Citizen and on Freeman's attempt to speak with Dr. Garg, a local member of the Ohio State Medical Board, regarding disciplinary procedures. The only portion of this broadcast which concerned appellant, Usha Sethi, M.D., was the excerpt from an interview with Lana Stull and as Dr. Sethi herself admitted, the statements made in said excerpt were true and were favorable to her. Thus, any statements made in the February 8, 1993 broadcast were not defamatory to appellant, Usha Sethi, M.D.

In the broadcast of February 9, 1993, Freeman utilized the adjectives complained of by appellants in again referring to the report issued by Public Citizen and never used such adjectives in speaking about Dr. Sethi. Therefore, it cannot be said that a reasonable viewer would have understood the words, "unfit", "incompetent", "negligent" and "potentially deadly" to describe appellant, Usha Sethi, M.D., particularly in light of the context in which they were utilized. The remainder of this broadcast addressed the medical treatment which Lana Stull received from both appellant, Usha Sethi, M.D., and Dr. Renato Simon, and Ms. Stull's resulting medical malpractice claims against these doctors. Dr. Sethi, herself, admitted that the broadcast accurately reflected the basis of Ms. Stull's malpractice claim against her. (U. Sethi Depo. 152-155). Thus, any statements made concerning appellant, Usha Sethi, M.D. in the broadcast of February 9, 1993 were true or substantially true and were not defamatory as to said appellant.

Appellants further assert that the innocent construction rule does not apply to this case as the totality of circumstances test set forth in Vail, supra by the Ohio Supreme Court is the applicable law. Appellants state that by adopting the totality of circumstances test in Vail, the Ohio Supreme Court implicitly rejected the innocent construction rule. Nonetheless, appellants contend that even if the broadcasts in question are scrutinized under the innocent construction rule, the statements made therein were defamatory as a matter of law as they were not susceptible to two meanings.

The Ohio Supreme Court in Vail utilized the totality of the circumstances test to determine whether a subject statement is one of fact or opinion. In discussing the totality of the circumstances test, the Ohio Supreme Court in Vail, supra referred to their previous decision in Scott v. News-Herald (1986), 25 Ohio St.3d 243 and stated at 282:

"This analysis is not a bright-line test, but does establish parameters within which each statement or utterance may stand on its own merits rather than be subjected to a mechanistic standard. As Justice Locher, writing for the court, cautioned in Scott, ``the totality of the circumstances test * * * can only be used as a compass to show general direction and not a map to set rigid boundaries'."

In offering the foregoing discussion, the Ohio Supreme Court did not overrule the innocent construction rule as suggested by appellants, but rather, adopted a test by which to distinguish between statements of fact and those of opinion. Vail, supra. We have previously stated that no such determination between statements of fact and those of opinion need be made in this case as appellees have conceded that all statements at issue constituted statements of fact. Therefore, the innocent construction rule may be utilized to ascertain whether a statement of fact is defamatory.

The "innocent construction" rule provides that if a statement is "susceptible to two meanings, one defamatory and one innocent, the defamatory meaning should be rejected, and the innocent meaning adopted." Yeager v. Local Union 20 Teamsters (1983), 6 Ohio St.3d 369, 372.

The statements made during the broadcasts in question could be interpreted to indicate that any conclusion concerning Dr. Sethi's treatment of Lana Stull must await the outcome of Ms. Stull's pending medical malpractice action, which decision would ultimately be made by a court of law. Furthermore, said statements could be construed as general cautions to the viewing audience regarding their own doctors.

Thus, as the statements complained of by appellants are subject to an innocent, rather than defamatory meaning, the innocent construction rule must apply to remove any basis for a defamation action by appellants. Additionally, any complaint which appellants might have concerning the statement indicating Dr. Sethi was unavailable to comment, would likewise fail under the innocent construction rule as such statement could also be interpreted as meaning that Dr. Sethi was unable to comment for valid reasons.

Appellants also aver that the statements at issue were not privileged under R.C. 2317.05. which provides in pertinent part:

"The publication of a fair and impartial report of the * * * filing of any affidavit, pleading, or other document in any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, is privileged, unless it is proved that the same was published maliciously, * * *."

In order to avail oneself of the privileges under R.C. 2317.05, the party asserting the privilege must demonstrate that "the publication is a substantially accurate report of the official record." Oney v. Allen (1988), 39 Ohio St.3d 103, paragraph two of the syllabus. The Ohio Supreme Court in Oney further stated at paragraph three of its syllabus:

"A publication is substantially accurate if it conveys the essence of the official record to the ordinary reader, without misleading the reader by the inclusion of inaccurate extra-record information or the exclusion of relevant information in the record." (Citation omitted).

To be impartial, a publication cannot be biased and must not give the impression that the broadcaster agrees or disagrees with the assertions in the official record of proceedings. Oney, supra at 105-106. Appellants state that the broadcasts were not merely reports on a lawsuit as they included extra-record information concerning medical board laxity in disciplining bad doctors. Appellants additionally state that the broadcasts inaccurately reported that both of Lana Stull's ovaries "are still in place today," which misled the average viewer to believe that appellant, Usha Sethi, M.D., failed to remove Ms. Stull's ovary.

Appellants continue that the statements made in the subject broadcasts were not impartial and led the average viewer to believe that appellees agreed with the assertions made by Lana Stull. Appellants allege that appellees failed to report that appellant, Usha Sethi, M.D., filed an answer in the medical malpractice action initiated by Lana Stull, wherein she admitted that she performed a surgery which excised Ms. Stull's right ovary and fallopian tube, but denied all other allegations. Appellants also complain that appellees improperly reported that appellant, Usha Sethi, M.D., would not speak with them as they were aware of the fact that Dr. Sethi had been advised by legal counsel not to discuss the news story with Freeman.

Appellants aver that the discrepancies between the record of judicial proceedings and the statements made during the broadcasts in question represent substantial inaccuracies which negate the application of R.C. 2317.05. Appellants further maintain that appellees acted with actual malice, thereby precluding the application of R.C. 2317.05, as the statements complained of were made with knowledge that they were false or with reckless disregard as to truth or falsity. (See Jacobs v.Frank (1991), 60 Ohio St.3d 111).

Appellants submit that actual malice on the part of appellees in this case is evident as appellees made the conclusion that Lana Stull still had her ovaries in place. Appellants point out that appellees had no training of any type for its reporters concerning the gathering of facts or reporting of news; had no written or oral procedures or guidelines regarding same; obtained no medical consultation in an attempt to resolve the discrepancy in medical records; and, did not speak with the pathologist, radiologist or surgeon who assisted in Lana Stull's surgery.

In Dinkel v. Lincoln Publishing, Inc. (1994), 93 Ohio App.3d 344,347, the court held that the privilege afforded by R.C.2317.05 was an appropriate basis for an entry of summary judgment where the publication in question was a fair and impartial report of court records, stating:

"Plaintiff cannot defeat summary judgment by raising purported minor discrepancies between the news reports and the official information. A news report is considered a substantially accurate account of official government information or of a government report if the "gist' or the "sting' of the allegedly defamatory aspects of the news report, taken as a whole, accurately reflects the substance of the judicial proceedings or other information obtained from official sources. Errors as to secondary facts, that is, facts which do not change the import of the story or substantially alter the substance of the allegedly defamatory (but protected) aspect of the story, are not actionable."

The "gist" of Lana Stull's malpractice complaint against Dr. Sethi was that Dr. Sethi had purportedly removed Ms. Stull's right ovary, while ultrasound tests subsequently performed indicated that the right ovary was still in place. The medical records attached to Ms. Stull's malpractice complaint confirmed the removal of a right ovary and right fallopian tube, but additionally indicated that at a date subsequent to such surgery, both ovaries were intact. Appellees accurately pointed to both medical reports.

R.C. 2317.05 does not require a verbatim reproduction of a court record. Further, Dr. Sethi admitted during her deposition that the broadcasts in question accurately reflected the "gist" of Lana Stull's malpractice action. (Sethi Depo. 152-155). Thus, the broadcasts in question were privileged under R.C. 2317.05.

Appellants cannot overcome the privilege afforded by R.C.2317.05 without establishing that appellees aired the subject broadcasts solely out of hatred or ill will toward Dr. Sethi, thereby evidencing malice. Appellants produced no evidence to establish malice and therefore, the trial court properly concluded that appellees were entitled to summary judgment pursuant to R.C. 2317.05.

In consideration of the fact that appellees identified the findings of medical documentation attached to Lana Stull's medical malpractice claim against appellant, Usha Sethi, M.D., it cannot be said the broadcasts in question inaccurately reported that both of Lana Stull's ovaries "are still in place today." Additionally, appellants have taken the phrase, which they complain misled the viewing audience to believe Dr. Sethi failed to remove Lana Stull's ovary, out of context. In closing his story, Freeman noted that "[a]lthough none of the doctors would talk to us about why both of Mrs. Stull's ovaries are still in place today, they might have to talk in court because Mrs. Stull has filed malpractice suits against both of them."

In applying the innocent construction rule as previously discussed, such statement could be construed to mean that although both of Lana Stull's doctors declined or were unavailable to be interviewed to offer an explanation as to why the medical documentation presented conflicting findings concerning Ms. Stull's ovaries, they might have to explain such conflicts in court. Freeman was not making a conclusion as to whether he agreed or disagreed with the assertions made by Lana Stull, but rather, was making closing remarks which reminded the viewing audience of the conflicting findings in Ms. Stull's medical documentation and of the pending lawsuits against both Dr. Sethi and Dr. Simon.

Further, the fact that appellees did not report to the viewing audience that appellant, Usha Sethi, M.D., filed an answer to Lana Stull's medical malpractice claim, did not result in an exclusion of relevant information contained in the record. Likewise, the inclusion of information regarding the report issued by Public Citizen did not constitute inaccurate extra-record information and did not alter the import of the story or substantially alter the substance of the alleged defamatory aspect of the story. Thus, the broadcasts in question presented a substantially accurate report of an official report and the statements made in such broadcasts were thereby privileged pursuant to R.C. 2317.05.

In Bruss, supra, this court cited to New York Times Co. v.Sullivan (1964), 376 U.S. 254, in holding that material falsity is an essential element of defamation. We also held that in defending against a defamation action, it is sufficient for the defendant to show that the statement in question was substantially true. (Bruss, supra at 400; see also, NationalMedic Services Corp. v. E.W. Scripps Co. (1989), 61 Ohio App.3d 752).

The trial court found the statement that appellant, Usha Sethi, M.D., was unavailable to comment to be substantially true. We agree. Said appellant acknowledges that she was advised by legal counsel not to speak with Freeman concerning the medical issue involving Lana Stull. Dr. Sethi likewise acknowledges the statement in question concerning her unavailability was true and that appellees again contacted her office on February 9, 1993 when she was, in fact, unavailable to comment. (U. Sethi Depo. 155-156). The broadcasts at issue depict efforts by Freeman to contact not only Dr. Sethi but also, Dr. Garg and Dr. Simon. It is uncontroverted that Dr. Garg and Dr. Simon would not speak to Freeman. Freeman accurately reported on February 9, 1993 that Dr. Sethi was unavailable to speak to him and therefore, the statement, "[a]lthough none of the doctors would talk to us * * *," was substantially true as it applied to appellant, Usha Sethi, M.D.

Furthermore, appellees afforded appellant, Usha Sethi, M.D., the opportunity to be interviewed prior to broadcast in an effort to enable her to tell her side of the story and supply any additional information. However, such interview could not be obtained. Appellants' contention regarding the failure to conduct further investigation in this matter and obtain an expert medical review prior to broadcast is without merit as appellees had such duty.

Finally, appellants remark that the trial court erred in granting summary judgment against appellants, V.K. Sethi, Neil Sethi and Drs. Sethi, Inc. as each such appellant had a viable claim pursuant to dictates ofEmbers Supper Club, Inc. v. Scripps-Howard Broadcasting Company (1984), 9 Ohio St.3d 22.

V.K. Sethi, Neil Sethi and Drs. Sethi, Inc. have not alleged that appellees made defamatory statements about them in the broadcasts at issue. These appellants instead claim to have suffered damages as a result of the alleged defamatory statements made about Usha Sethi, M.D., thereby making their claims derivative.

A plaintiff in a defamation action must not only prove that a statement is defamatory, but also that he or she is the individual about whom the statement was made, a plaintiff cannot recover damages by establishing that another person has been defamed. (See Dinkel, supra). Appellants' reliance upon Embers Supper Club, Inc., supra is misplaced. In Embers, the Ohio Supreme Court upheld the right of a corporation to seek damages for defamation to the corporation itself. Such case did not stand for the proposition that a corporation may recover damages arising from the defamation of another person or entity as appellants would seem to suggest. Appellants, V.K. Sethi, Neil Sethi and Drs. Sethi, Inc. have no viable claim for damages pursuant to any alleged defamatory statement made about appellant, Usha Sethi, M.D.

Appellants did not establish that the statements in question were defamatory as to appellant, Usha Sethi, M.D. and thereby, did not make a sufficient showing of the existence of every element essential to their case. (See Celotex Corp., supra). Reasonable minds could only conclude in this case that the statements of fact made in the broadcasts at issue were true or substantially true and thereby were not defamatory, were privileged pursuant to R.C. 2317.05 and were subject to the innocent construction rule.

This writer can completely sympathize with the doctor's outrage over these broadcasts. A professional's reputation is established over the years by hard work, sacrifice and dedication. Then one dissatisfied patient, by airing a grievance through the public media, puts a stain on that reputation. This is personally very distasteful.

The balance, however, is that we must have a free and unfettered public media. The "60 Minutes" style of journalism does bring to the public a general issue of great import. This spotlight on abuse can and, in many instances, does bring about positive changes.

The law and the courts are charged with the duty of balancing between these conflicting interests. In this case, the balance falls to the media. Therefore, the trial court did not err in granting summary judgment in favor of appellees, WFMJ Television, Inc., et al.

Appellants' sole assignment of error on appeal is found to be without merit.

The judgment of the trial court is affirmed. Donofrio, J., concurs.

Vukovich, J., dissents. See dissenting opinion.

APPROVED:

______________________________ EDWARD A. COX, PRESIDING JUDGE