                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CA-00764-SCT

HAZEM BARMADA, M.D.

v.

ARA K. PRIDJIAN, M.D.


DATE OF JUDGMENT:                          02/05/2007
TRIAL JUDGE:                               HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    WENDY C. HOLLINGSWORTH
ATTORNEYS FOR APPELLEE:                    GAIL D. NICHOLSON
                                           CHESTER D. NICHOLSON
NATURE OF THE CASE:                        CIVIL - TORTS-OTHER THAN PERSONAL
                                           INJURY & PROPERTY DAMAGE
DISPOSITION:                               AFFIRMED - 08/14/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Dr. Hazem Barmada appeals to this Court from the grant of summary judgment in

favor of the Defendant, Dr. Ara K. Pridjian. Barmada sued Pridjian for alleged defamation

arising out of their working relationship as heart surgeons at Memorial Hospital at Gulfport.

Barmada raises the following issues on appeal:

       I.     Whether the Trial Court Erred in Finding That the Defendant Was
              Protected by Qualified Privilege.

       II.    Whether the Trial Court Erred in Finding That There Was No
              Genuine Issue of Material Fact Regarding Actual Malice, Bad
              Faith, and/or Abuse of Qualified Privilege.
                         FACTS AND PROCEDURAL HISTORY

¶2.    In 2000, the credentials committee at Memorial Hospital at Gulfport (“Memorial”)

considered Dr. Hazem Barmada, a cardiothoracic surgeon, for the cardiac surgery program.

A member of the committee asked Dr. Ara Pridjian, the medical director of cardiac surgery,

to inquire about Barmada’s background using sources identified in Barmada’s resume. Some

responses were critical of Barmada, and that information was reported to the committee. The

committee found nothing that impugned Barmada’s medical or surgical abilities and accepted

him on staff.

¶3.    Thereafter, Barmada became the subject of criticism from doctors and staff at

Memorial. The Chief of Cardiovascular Sciences at Memorial, Dr. Milton Concannon,

testified by affidavit that Barmada’s mortality rate exceeded the threshold set for cardiac

surgeons at Memorial. Concannon testified that Barmada’s mortality rate coupled with the

complaints necessitated an independent review of some of Barmada’s cases.                The

independent review found Barmada’s work to be “adequate,” although it did confirm the

higher mortality rate.

¶4.    In February 2002, Barmada initiated this lawsuit against Pridijian alleging defamation.

In May 2002, Pridjian filed his answer and counterclaim.1 In October 2006, Pridjian filed

a motion for summary judgment. Pridjian filed in support of his motion numerous affidavits




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         On May 30, 2002, Barmada filed a motion to disqualify Pridjian’s counsel alleging
that he had twice consulted with Pridjian’s attorney regarding the matters which were the
subject of the instant action. After the circuit court denied the motion, Barmada filed an
interlocutory appeal. This Court reversed the circuit court’s decision and ordered that
Defendant’s counsel be disqualified and disgorged of his fees. (Order 103661, May 8, 2003).

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as well as depositions of Barmada and himself. In response, Barmada relied on two

documents, an affidavit of Nurse David Kutlina and Dr. Paul Robinson’s independent review.

¶5.    The circuit court noted Kutlina’s testimony that Pridjian made “generally slanderous

comments about [Barmada] in front of the heart team at memorial.” (Emphasis in original).

The circuit court ruled that Dr. Robinson’s review “has no legal effect since Dr. Robinson

was neither deposed nor did he submit an affidavit containing the information relied upon

by the Plaintiff.” The trial court granted Pridjian’s motion for summary judgment, finding

that a qualified privilege applied and that there was no evidence before the court of malice.

Aggrieved by the trial court’s judgment, Barmada filed this appeal.

                                   LEGAL ANALYSIS

¶6.    A de novo standard is applied when reviewing a trial court's grant of summary

judgment. Miller v. Meeks, 762 So. 2d 302, 304 (Miss. 2000). Under Rule 56(c) of the

Mississippi Rules of Civil Procedure, summary judgment is appropriate when there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of law. The

party seeking summary judgment bears the burden of proving there is no genuine issue of

material fact. Miller, 762 So. 2d at 304. The court must review all evidence in a light most

favorable to the party against whom the motion for summary judgment is made. Id.

¶7.    The tort of defaming a person’s character or reputation through the spoken word is

actionable under the common law doctrine of slander. Speed v. Scott, 787 So. 2d 626, 631

(Miss. 2001). “Defamation is that which tends to injure reputation in the popular sense; to

diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to




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excite adverse, derogatory or unpleasant feelings or opinions against him." Id. (internal

quotations omitted)

       I.     Whether the Trial Court Erred in Finding That the Defendant Was
              Protected by Qualified Privilege.

¶8.    Barmada argues that summary judgment granted in favor of Pridjian was not proper

because statements made by Pridjian are not protected by a qualified privilege. Pridjian

argues that summary judgment was proper because he is immune from liability for slander

based on qualified privilege.

¶9.    When analyzing defamation claims, Mississippi courts employ a bifurcated process.

Eckman v. Cooper Tire & Rubber Co., 893 So. 2d 1049, 1052 (Miss. 2005). First, the Court

must determine whether the occasion calls for a qualified privilege. Id. If a qualified

privilege does exist, the Court must then determine whether the privilege is overcome by

malice, bad faith, or abuse.      Id.   This Court has defined qualified privilege as “[a]

communication made in good faith and on a subject matter in which the person making it has

an interest, or in reference to which he has a duty, is privileged if made to a person or persons

having a corresponding interest or duty, even though it contains matter which without this

privilege would be slanderous . . . . ” Id. This Court has recognized that a privilege exists

with regard to communications between employers and employees. Young v. Jackson, 572

So. 2d 378, 383 (Miss. 1990).

¶10.   Kutlina testified by affidavit that Dr. Pridjian had made defamatory statements to the

heart team while performing surgeries. Dr. Pridjian testified in his deposition that he had

discussed Barmada’s competency with other physicians and staff at Memorial and with an



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independent reviewer. The following exchange took place during Pridjian’s deposition

regarding conversations with physicians who were not on staff at Memorial:

       Q:     What did you tell them about Dr. Barmada?

       A:     They told me. They told me things that they had heard.

       Q:     Such as what?

       A:     That he was a surgeon who needed help as you alluded to in the letter.

       Q:     Anything else?

       A:     No.

       Q:     Did you sit silently and listen, or did you share with them your opinions
              regarding Dr. Barmada?

       A:     I’m under oath. I’ve got to tell you I don’t remember.

(Emphasis added). If these people shared a direct interest in Barmada’s competency, then

qualified immunity applies.

¶11.   In Hayden v. Foryt, a supervising doctor discussed charges of incompetency against

a fellow doctor at various meetings with administrators and also at a surgical staff meeting,

“attended by all members of the hospital medical surgical staff, except for one physician on

leave.” Hayden v. Foryt, 407 So. 2d 535, 537 (Miss. 1981). This Court held that “the

persons present in those meetings were directly interested in the matter and that the qualified

privilege prevailed . . . .” Id. at 538. The hospital in Hayden also employed an independent

review of some of the physician’s cases by a visiting doctor. Id. The supervising doctor

expressed his concerns in the incompetency of the doctor with the reviewing physician. Id.

This Court found that these communications were protected by the qualified privilege. Id.



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¶12.   In the present case, the only evidence presented shows that Pridjian made statements

to Memorial administrators, doctors, the surgical staff, and an independent reviewer. Based

on Hayden, these individuals were directly interested in the matter; and therefore, the

qualified privilege applies. See Hayden, 407 So. 2d at 537-38.

¶13.   In Young, an invasion-of-privacy case, two of Young’s coworkers, Smith and Wilson,

communicated to other coworkers that Young’s recent collapse and hospitalization were not

due to radiation exposure at their work place but were not related to an earlier hysterectomy.

Young, 572 So. 2d at 378. There was concern among employees that Young’s problems

were related to radiation exposure and that they themselves might be in danger. Id. This

Court held that the mere fact that the persons were coworkers did not in and of itself establish

a qualified privilege. Id. at 384. The occasion must be one which gives rise to the defense.

Id. In Young, the occasion for qualified immunity arose because the parties shared a direct

interest in their personal safety. Id.

¶14.   We find in the present case, Pridjian, the heart team and the medical personnel shared

a direct interest in Barmada’s competency.

¶15.   The one concern of this Court is Pridjian’s “I don’t remember” statement. When

asked if he had talked about Barmada’s competency with physicians not employed at

Memorial he replied, “I’m under oath. I’ve got to tell you I don’t remember.” The

statements to physicians not employed at Memorial would not be protected under either of

the interests found above. Obviously, they would not share the direct interest in protecting

the interests of a common employer, and secondly, it would stretch an interest in protecting

patients too broadly to allow it to apply to the entire coastal area. We find Pridjian’s

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statement troubling because one reading of it suggests that he was not being honest.

However, Barmada did not offer any evidence that Pridjian had made defamatory statements

to anyone outside the employment of Memorial. Therefore, we find that qualified immunity

applies in this case.

       II.     Whether the Trial Court Erred in Finding That There Was No
               Genuine Issue of Material Fact Regarding Actual Malice, Bad
               Faith, and/or Abuse of Qualified Privilege.

¶16.   Barmada further seeks to reverse the summary judgment by claiming malice, bad

faith, and/or abuse of the privilege by Pridjian. Pridjian argues that summary judgment was

appropriate because Barmada failed to provide any evidence of malice, and thus he failed to

overcome the presumption of good faith.

¶17.   “If a qualified privilege does exist, the Court must then determine whether the

privilege is overcome by malice, bad faith, or abuse.” Eckman v. Cooper Tire & Rubber Co.,

893 So. 2d 1049, 1052 (Miss. 2005). Where qualified privilege exists, a presumption of good

faith arises. Hayden v. Foryt, 407 So. 2d 535, 539 (Miss. 1981). “A jury does not decide

whether a defendant acted with actual malice unless a genuine issue of material fact exists.”

Eckman, 893 So. 2d at 1054. A plaintiff must present affirmative evidence demonstrating

actual malice to defeat the qualified privilege.       Id.   “Actual or express malice, as

distinguished from malice in law, in its ordinary sense denotes ill will, a sentiment of hate

or spite, especially when harbored by one person towards another, exists when one with a

sedate, deliberate mind and formed design injures another, as where the person is actuated

by ill will in what he does and says, with the design to willfully or wantonly injure another.”

Young v. Jackson, 572 So. 2d 378, 385 (Miss. 1990).

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¶18.   Barmada makes numerous allegations of malice and bad faith, but we rely only on

those that are supported by evidence in the record. First, in his deposition, Barmada testified

that Pridjian was behind a phone call made to one of his surgical patients’ room on the eve

of surgery telling them to switch to another surgeon because Barmada was a bad surgeon.

Barmada does not support this allegation with any actual proof that Pridjian had anything to

do with this call. While Pridjian acknowledged that the call was made, he testified that he

had nothing to do with it. Barmada has presented no evidence of malice or bad faith by

Pridjian in reference to the phone call.

¶19.   Second, Barmada asserts that Pridjian unsuccessfully tried to stop another physician

from assisting him in a surgery. However, Barmada admits to his lack of first-hand

knowledge of the events. The assisting physician’s affidavit was the only competent

evidence before the trial court. He recounted the events as follows: “Prior to the time that I

made it into the operating room, I was confronted by Dr. Ara K. Pridjian, M.D., who felt

obligated to warn me about assisting Dr. Barmada. Dr. Pridjian told me that Dr. Barmada

had cases under investigation and his clinical competence was in question.” In light of the

assisting physician’s testimony, we find that Barmada has presented no evidence of malice

or bad faith by Pridjian with respect to this incident.

¶20.   Finally, Barmada makes countless assertions that Pridjian’s harsh comments to

Memorial staff were malicious. Barmada contends that Kutlina’s affidavit provides

affirmative evidence of this malicious ploy. The trial court ruled that “Nurse Kutlina

references no specific conversation by substance, date or witnesses thereto. Thus, it is so

vague and generalized as to be of no evidentiary value for purposes of determining malice.”


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While we disagree with the trial court’s conclusion that Nurse Kutlina’s affidavit was too

vague and generalized to be of evidentiary value, we agree that it fails to provide a basis for

Barmada’s claim that Pridjian’s conduct exceeded the scope of qualified immunity.

¶21.   In Hayden, this Court considered whether a supervising doctor’s criticism of a fellow

doctor as incompetent was malicious. Hayden, 407 So. 2d 535. “If the defendant honestly

believed the plaintiff’s conduct to be such as he described it, the mere fact that he used strong

words in describing it is no evidence of malice. The fact that the expressions are angry and

intemperate is not enough; the proof must go further and show that they are malicious.” Id.

at 539. The Court found that the proof provided did not show malicious conduct by the

supervising doctor. The Court stated that when personal differences between doctors affect

the hospital, “discipline must be administered by those people in authority whose

responsibility and allegiance are to the institution.” Id.

¶22.   In Benson, the appellant argued that letters criticizing her competency as a secretary

were malicious as they were designed to injure her professional reputation. Benson v. Hall,

339 So. 2d 570 (Miss. 1976). The letters stated that “[Benson] is most disrespectful . . . she

cannot follow simple directions unless they are written . . . [and] unless there is some place

where she can work where she has nothing to do but make copies of something already done,

she will not be of any use in any office on campus.” Id. at 572. In Benson, this Court

affirmed the trial court’s dismissal of Benson’s suit on a demurrer because Benson provided

the court with mere conclusions of malice but failed to provide any facts which would

constitute malice. Id. at 573.




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¶23.   In Eckman, Eckman argued that a medical review of his competency included

malicious statements. Eckman, 893 So. 2d 1049. These comments included “[i]t is

embarrassing to me that there are people in my profession which would resort to tactics like

these and give the entire profession a bad name. To me, this borders on white collar crime.”

Id. at 1052. This Court, echoing its sentiments in Hayden, held that “[i]f the defendant

honestly believed the plaintiff’s conduct to be such as he described it, the mere fact that he

used strong words in describing it is no evidence of malice.” Eckman, 893 So. 2d at 1053

(citing Hayden, 407 So. 2d at 539). “The fact that the expressions are angry and intemperate

is not enough; the proof must go further and show that they are malicious.” Eckman, 893 So.

2d. at 1053 (citing Hayden, 407 So. 2d. at 539.) This Court affirmed the grant of summary

judgment finding that while some of the statements may have been characterized as

intemperate, Eckman failed to create a genuine issue of material fact regarding malice.

¶24.   In the present, case Barmada did not produce affirmative evidence of malice to

overcome the presumption of good faith; and therefore, summary judgment was appropriate.

The only evidence offered by Barmada was Kutlina’s affidavit which, under Hayden,

Benson, and Eckman, does not present evidence that Pridjian’s conduct rose to the level of

malicious. Furthermore, the alleged statements of Pridjian are similar to the statements in

Benson and Eckman. In both of those cases this Court held that the mere harshness of the

statements did not constitute malice.

                                        CONCLUSION

¶25.   For the reasons stated above, we affirm the trial court’s grant of summary judgment.

¶26.   AFFIRMED.

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    WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON AND LAMAR, JJ.,
CONCUR. GRAVES AND RANDOLPH, JJ., CONCUR IN RESULT ONLY.
EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.




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