# Feyz v. Mercy Memorial Hospital

> Michigan Supreme Court · June 24, 2006 · 475 Mich. 663

URL: https://www.frixlaw.com/law-library/cases/9669871

## Case

- **Full name:** Feyz v. Mercy Memorial Hospital
- **Court:** Michigan Supreme Court
- **Decided:** June 24, 2006
- **Citations:** 475 Mich. 663; 719 N.W.2d 1
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cavanagh
- **Judges:** Taylor, Corrigan, Markman, Young, Weaver, Kelly, Cavanagh
- **Cited by:** 88 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9669871

## How later opinions describe it (automated extraction)

- explaining the purpose as “foster[ing] the communicative and evaluative processes related to . . . insurance-fraud prevention”

## Opinion text

CAVANAGH, J.
(concurring in part and dissenting in part). I concur with many of the results reached by the majority opinion. Specifically, I agree that, because MCL 331.531 1 establishes qualified immunity for peer *692 review entities and participants, there is no justification in this state for recognizing the judicial nonintervention doctrine. I also agree that the judicial nonintervention doctrine should not be applied to a private hospital’s general staffing decisions. I disagree, however, with the majority’s conclusion that the term “malice,” as used in MCL 331.531, should be defined under the principles of “actual malice” in accordance with defamation law.
Notably, the Legislature did not define “malice” in MCL 331.531. Like the majority, I agree that “malice” is a term that has acquired a peculiar and appropriate meaning in the law. Therefore, this Court must construe the term “malice” according to its peculiar and appropriate legal meaning. Ford Motor Co v Woodhaven, 475 Mich 425 ; 716 NW2d 247 (2006); MCL 8.3a. Thus, because “malice” is a legal term, resort to a legal dictionary is helpful. Ford Motor Co, supra at 440. Reference to a legal dictionary confirms that “malice” is defined as follows: “The intent, without justification or excuse, to commit a wrongful act” or “[rjeckless disregard of the law or of a person’s legal rights.” Black’s Law Dictionary (7th ed). 2 Because there is no indication that the Legislature intended to alter the meaning of the legal term “malice” or to use any variation of that *693 term that may apply in unrelated contexts, 3 “malice,” as used in MCL 331.531 should be interpreted consistently with its legal definition and should not be defined, as the majority does, solely by reference to “actual malice” under defamation law.
Simply stated, the Legislature used the term “malice,” not “actual malice.” As noted by this Court in J & J Constr Co v Bricklayers & Allied Craftsmen, 468 Mich 722, 731 ; 664 NW2d 728 (2003):
Under long-settled constitutional principles concerning the First Amendment rights of freedom of speech and freedom of the press, a public-ñgure plaintiff must establish that a defendant made defamatory statements with “actual malice” in order to prevail in a defamation action. New York Times[ Co v Sullivan, 376 US 254 ; 84 S Ct 710 ; 11 L Ed 2d 686 (1964)] (establishing the “actual malice” standard for liability for defamation of public officials); Curtis Publishing Co v Butts, 388 US 130 ; 87 S Ct 1975 ; 18 L Ed 2d 1094 (1967) (extending the “actual malice” standard to public figures). “Actual malice” exists when the defendant knowingly makes a false statement or makes a false statement in reckless disregard of the truth. [Emphasis added.]
Further, and as noted earlier, Black’s Law Dictionary (7th ed) defines “actual malice” in the context of defamation as “Knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true.” Accordingly, reference to a legal dictionary and this Court’s case law confirms that the term “actual malice” pertains in defamation law. And be *694 cause the Legislature used the term “malice” in MCL 331.531, not “actual malice,” there is no reason to suspect that the Legislature intended principles of defamation law to apply under the peer review statute.
Additionally, interpreting “malice” as “actual malice” in accordance with defamation law would read the term “act” out of MCL 331.531. MCL 331.531 provides that immunity will be provided for “an act or communication within its scope as a review entity” as long as the person, organization, or entity does not act with malice. Accordingly, it appears as if the Legislature had a broader understanding of immunity under MCL 331.531 than that contemplated by the majority. In other words, while the defamation definition of “actual malice” might arguably be warranted if MCL 331.531 used that term and the statute dealt only with a communication, the legal definition of “malice” must apply because MCL 331.531 specifically deals with “act[s] or communication[s].”
Further, I am also unpersuaded by the majority’s theory that the defamation law definition of “actual malice” must pertain to MCL 331.531 because the Legislature amended the statute to include a malice exception sometime after New York Times Co v Sullivan, 376 US 254 ; 84 S Ct 710 ; 11 L Ed 2d 686 (1964), was decided. The Legislature added the malice exception roughly 11 years after Sullivan , and the majority has not pointed to any other evidence apart from an 11-year gap suggesting that the amendment was a direct response to Sullivan , particularly where Sullivan uses the term “actual malice” and MCL 331.531 does not. Nor am I persuaded by the majority’s rationale that “act,” as used in MCL 331.531, must have a “fundamental communicative aspect” and that any act that is “non-communicative, non-evaluative” is outside *695 the scope of peer review. Ante at 686 n 65. There is simply no reason to suspect that the Legislature intended to create such a redundancy in MCL 331.531— i.e., immunity is provided for communicative acts or communications within the scope of peer review. Again, MCL 331.531 provides immunity for “act[s] or communication[s].” Nor am I persuaded by the majority’s rationale that the legal meaning of the term “malice” would circumvent the entire peer review process. Rather, a peer review participant is still provided immunity for a nonmalicious “act or communication within its scope as a review entity” as directed by the Legislature.
In sum, I agree with the majority’s decision to remand this case to the circuit court. On remand, however, I would instead direct the circuit court to apply the legal definition of the term “malice” because there is no indication in MCL 331.531 that the Legislature intended any other meaning.
Weaver and Kelly, JJ., concurred with Cavanagh, J.
MCL 331.531 provides in relevant part:
(1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider.
(3) A person, organization, or entity is not civilly or criminally hable:
(a) For providing information or data pursuant to subsection (1).
(b) For an act or communication within its scope as a review entity.
(c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3.
*692 (4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice.
Notably, the Court of Appeals majority concluded that “ ‘[mjalice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.’ ” 264 Mich App 699, 704-705 ; 692 NW2d 416 (2005), quoting Black’s Law Dictionary (5th ed). Further, the Court of Appeals partial dissent would have applied the defamation definition of “malice.” Id. at 726-727 (Murray, BJ., concurring in part and dissenting in part).
Significantly, “actual malice” is defined as “1. The deliberate intent to commit an injury, as evidenced by external circumstances .... 2. Defamation. Knowledge (by the person who utters or publishes a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true.” Black’s Law Dictionary (7th ed), p 968.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9669871. Public record. Not legal advice.