Avoiding “group libel” in public explanations of an adverse drug event

Abstract

Most adverse drug events are handled internally by the hospital or pharmacy where they occur. The results may be tragic and the risk of legal liability may be significant, yet the incident is not newsworthy. There is no report in the media, and there is no need for a public explanation. On the other hand, a very few adverse drug events do become newsworthy. They are discovered and reported by the media. The hospital or pharmacy must provide some sort of explanation to assure the public that problems have been identified, solutions have been found, and that all is well. This is sometimes referred to as crisis management. While explaining an adverse event to the public, care must be taken not to disparage personnel who were, or who may have been, involved in the event. A recent Ohio case recognized the applicability of a legal doctrine known as “group libel” when a public statement defames health care personnel following an adverse drug event. A hospital physician was alleged to have ordered large doses of opioids, leading to the deaths of numerous patients. In explaining the hospital’s response to reports of this alleged criminal activity, the hospital released a press statement saying: “The actions that created this tragedy were carried out by a small number of people who have made poor decisions. We can’t disregard colleagues ignoring policies and putting our patients’ safety at risk.” Several days later, a second statement was released to the press: “We have identified a total of 48 nurses and pharmacists whose actions are under review and whose names have been reported to the relevant nursing and pharmacy boards. Out of abundance of caution, we have removed all colleagues who were associated with medication administration for an impacted patient. In total, 30 colleagues are on administrative leave.” Several employees were terminated by the hospital. A group of these former employees then sued the hospital for libel. The former employees contended that they “were made to be scapegoats” and that the hospital had “panicked” as a reaction to the “nationwide opioid epidemic.” The plaintiffs contended that “their personal and professional lives were left in tatters.” The hospital moved the court to dismiss the case based on the lack of identification of any specific person in the press releases. In considering the hospital’s motion to dismiss, the court reviewed group libel. According to the court, “a plaintiff can maintain a defamation case when the defamatory statement is made against a group of people, but only if the group is small enough that the defamation can be understood to have been directed at the individual member, or if the circumstances of the publication reasonably give rise to the conclusion that the member is being particularly referenced.” The court concluded that some, but not all, of the plaintiffs qualified to assert a defamation case under the doctrine of group libel. Due to the way in which the suspensions and terminations were conducted, some of the former employees were individually identifiable as being referenced in the hospital’s press releases, while other former employees were not individually identifiable. The court denied the hospital’s motion to dismiss. It is understandable that an institution or business would want to allay fears of customers and the public following media reports of wrongdoing. The community needs to trust that there are no continuing threats to public welfare. This case suggests that the explanation, “We had a problem with some staff; they have been disciplined; the problem is solved,” is not the correct approach. This unnecessarily casts aspersions on individual staff members. The better approach is to convey the more generic message that “We have the situation under control. Necessary changes have been made. There are no threats to public safety.”