## Facts

- Two physicians jointly treated a critically injured trauma patient during surgery at a hospital; the patient died.
- Immediately after the death, the surgeon criticized the anesthesiologist in the operating room in front of other team members, stating (among other remarks) that the patient “could have made it with better resuscitation,” that the anesthesiologist “didn’t really try,” and that he “purposefully didn’t resuscitate” the patient.
- In a hallway outside the operating room, in the presence of a nurse and the chief of anesthesia, the surgeon told the anesthesiologist: “You just euthanized my patient.”
- Later that evening, in a meeting with the anesthesiologist and the chief of anesthesia, the surgeon repeated that the anesthesiologist had “euthanized” the patient.
- The anesthesiologist sued the surgeon for defamation and defamation per se and sued the hospital on a respondeat superior theory.

## Issues

1. Whether the plaintiff’s endorsement of an order (“WE ASK FOR THIS”) waived appellate review of rulings on demurrer under Va. Code § 8.01-384(A).
2. Whether the challenged statements were non-actionable opinion or rhetorical hyperbole, or instead asserted provably false facts capable of defamatory meaning.
3. Whether the statements were protected by qualified privilege as professional communications about patient care and, if so, what forms of common-law malice can defeat that privilege at summary judgment.

## Decision

- The court held the plaintiff did not waive appellate issues by endorsing the order; objections otherwise made and argued were preserved under Va. Code § 8.01-384(A).
- The court held the statements were made on an occasion of qualified privilege because they were communicated among medical personnel with a shared duty or interest regarding the patient’s care.
- The court rejected the categorical treatment of the non-“euthanasia” remarks as non-actionable opinion; at least some statements (including that the patient “could have made it with better resuscitation”) could be understood as factual assertions and thus potentially actionable.
- The court agreed the “euthanasia” accusation was not rhetorical hyperbole.
- The court reversed the summary-judgment ruling to the extent it required malice to mean only personal spite or ill will; it remanded for further proceedings under the correct malice standard.
- Disposition: affirmed in part, reversed in part, and remanded.

## Legal Principles

- Under Va. Code § 8.01-384(A), once a party has made known the desired action or objection, formal exceptions are unnecessary; endorsing an order does not, by itself, waive preserved objections.
- A statement is actionable in defamation if a reasonable listener could interpret it as stating actual facts about a person that are provable as true or false; evaluative language may be actionable when it implies concrete facts about professional conduct.
- Qualified privilege applies to good-faith communications on a subject in which speaker and recipient share a corresponding duty or interest, including intra-hospital communications about patient treatment.
- A qualified privilege may be defeated by common-law malice, which includes not only personal spite or ill will but also knowledge of falsity or reckless disregard for truth, misuse of the occasion for an improper purpose, or excessive publication to persons without a corresponding duty or interest.

## Conclusion

The court held that peer communications about a patient’s care were qualifiedly privileged but clarified that the privilege can be lost through forms of malice beyond personal animus; it also held some allegedly defamatory criticisms could be construed as factual assertions, requiring remand for further proceedings under the correct standards.


Cashion v. Smith, 286 Va. 327, 749 S.E.2d 526 (Va. 2013)