A local TV news report that focused on malpractice suits and disciplinary actions taken against a Texas neurosurgeon may have cast him in a negative light, but it did not constitute libel, a state appeals court has ruled. Not giving up, the surgeon has asked the state Supreme Court to further review the case.
In January 2004, KEYE-TV in Austin, Texas, ran an "investigative report" by reporter Nanci Wilson that was based largely on 2 malpractice suits filed in the previous 5 years against neurosurgeon Byron D. Neely, MD, as well as a 2003 disciplinary action taken against Dr. Neely by the Texas Board of Medical Examiners, according to court documents. That disciplinary action, in which the Board and Dr. Neely agreed to a 3-year probated suspension of his medical license, was taken in response to a complaint that Dr. Neely had been prescribing controlled substances for himself that could have interfered with his surgery practice.
"If you were told you needed surgery," said KEYE-TV anchor Fred Cantu as he opened the 2004 "investigative report" on Dr. Neely, "would you want to know if your surgeon had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years?"
In the taped piece, Ms. Wilson went on to interview former NFL player Paul Jetton, who had sued Dr. Neely after what was supposed to be a 2-hour surgery to remove a brain tumor ended up lasting 8 hours, landed Mr. Jetton in the hospital for 6 weeks, left him disabled and required him to have a total of 12 surgeries. In their suit, the Jettons alleged that the initial surgery was unnecessary, that Dr. Neely had been negligent in allowing complications and an infection to occur and that the surgeon had been impaired by the steroids and opiates he was taking, which allegedly caused him to have hand tremors. The 2 parties settled for $500,000, although Dr. Neely did not admit liability, court documents show.
In the TV report, Ms. Wilson also discussed a lawsuit brought by the ex-wife of Wei Wu, a former brain surgery patient of Dr. Neely's who committed suicide after learning, from surgery and pathology results, that he had terminal brain cancer. An autopsy conducted after Mr. Wu's death showed that the brain cancer diagnosis had been false, according to court documents. Li Yu sued Dr. Neely and Mr. Wu's oncologist, alleging that their misdiagnosis led to her ex-husband's suicide, but her suit was dismissed by the district court.
Dr. Neely chose not to comment for Ms. Wilson's TV report. After it aired, he sued Ms. Wilson, the local station and its parent company, Viacom, for libel. According to court documents in the libel suit, Dr. Neely has not denied suffering from hand tremors or prescribing medications to himself to treat a number of medical conditions, but he contends that these actions were not illegal at the time and that they did not impair his ability to perform surgery. He alleged in his libel suit that the TV report inaccurately gave the impression that Dr. Neely operated on patients while impaired and that the state Medical Board had disciplined him for "taking dangerous drugs."
The District Court in Travis County, Texas, first granted summary judgment to the defendants, and that judgment was upheld in February by the Court of Appeals of Texas. According to court documents, judges hearing the case determined that the media's reporting and publishing of actual third-party allegations against Dr. Neely were "substantially true," even if the allegations themselves were not, and therefore did not constitute defamation.
In a petition for review filed with the Texas Supreme Court last month, Dr. Neely and his attorneys allege that, according to the appeals court's ruling, "the media is free to defame anyone without fear of liability, even if the defamed are private individuals who did not thrust themselves into the limelight. Such a rule gives the media unlimited power to destroy the reputations and livelihoods of such persons with impunity." They ask the state Supreme Court to consider whether the appeals court erred in ruling that "the 'substantial truth' inquiry is properly focused on the accuracy of the reporting, not on the truth of the statements themselves."
Irene Tsikitas
