Johnson v. Ohio Board of Nursing (Dec. 17, 2009), Court of Claims, No. 2004-10876

Holding:

Board is entitled to an absolute privilege for alleged defamatory statements made in the course of the Board’s quasi-judicial adjudication proceeding. Board is entitled to a qualified privilege for other statements made by Board agents.

Summary:

Plaintiff Johnson, who had held a license as a licensed practical nurse (“LPN”), brought a civil action against the Ohio Board of Nursing for defamation, intentional infliction of emotional distress, and civil conspiracy. Johnson’s license as an LPN had been permanently revoked following an administrative hearing, based upon violations of the Nurse Practice Act. Johnson alleged that agents of the Board defamed her by publishing false statements that caused her harm.

Johnson alleged that certain false statements were made in the written charges issued against her, testimony provided at hearing by Board witnesses, and in the Report and Recommendation issued by the Board’s Hearing Examiner. The court held that the Board could not be held liable for any of the alleged false statements due to an absolute privilege.

Statements made during judicial proceedings are afforded an absolute privilege when they are relevant to the proceeding. The court held that the same absolute privilege applies to quasi-judicial proceedings such as the Board’s administrative hearing process.  The court therefore held that any allegedly false statements contained in the charges or the Report and Recommendation, or in testimony at the Board hearing, were subject to an absolute privilege and not actionable.

Johnson also alleged that false statements were made by Board employees during contact with members of the public.  The court found that these statements were protected by a conditional or qualified privilege. The elements of such privilege are: “good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” The court found that the Board employees performed their duties in good faith, and communicated to others in response to specific inquiries under circumstances that gave rise to a duty to respond. The court therefore found that the privilege attached. Once established, a qualified privilege may be defeated only if the claimant shows that the defendant acted with actual malice.  Johnson failed to establish that Board employees acted with actual malice, which requires knowledge that the challenged statement is false, or acting with reckless disregard as to the truth or falsity of the statement. Judgment was entered in favor of the Board on Johnson’s defamation claims. The court also ruled in favor of the Board on Johnson’s claims of intentional infliction of emotional distress, and civil conspiracy. (AAG Stephanie Pestello-Sharf).