© 2013 The Texas Lawbook.
By Mark Curriden
Senior Writer for The Texas Lawbook
(June 28) – A splintered Texas Supreme Court ruled Friday that an Austin television station and its reporter should be forced to stand trial against libel allegations even if the media reports in question were substantially true – and possibly literally true.
The decision could significantly stifle media coverage of ongoing government investigations in Texas. In fact, Chief Justice Wallace Jefferson, writing a blistering dissent, states that the court’s decision “abridges the freedom to report on a matter of public concern.”
“It collides violently with the First Amendment,” he wrote.
The five to three decision by the state justices centers on whether an Austin doctor has shown that there are sufficient questions of fact that should be decided by a jury or dismissed pretrial on summary judgment.
In 2004, KEYE-TV in Austin reported that the Texas Medical Board had alleged and concluded that neurosurgeon Byron Neely had been improperly self-prescribing large quantities of narcotics to himself between 1999 and 2002 and that he was under the influence of those drugs when he performed surgery. The medical board suspended his medical license and order that he undergo psychiatric examination for addiction.
Neely sued the TV station, claiming that the medical board never concluded that he performed surgery while under the influence of drugs. The physician denied that he was an addict and says drug use never impaired his surgical skills.
In sworn testimony, Neely admitted that he took morphine regularly at bedtime and when he awoke, but he says the effects wore off before he performed surgery three or four hours later.
The trial court and the court appeals granted summary judgment to KEYE, finding that the gist of the TV station’s reports were true.
Enter the Texas Supreme Court, an institution that has the reputation of twisting and contorting to unimaginable degrees in order to dismiss factual disputes on summary judgment grounds. Many lawyers were surprised that the justices even heard oral arguments in the Neely case, believing the court would simply uphold the summary judgment dismissal.
The majority of the justices ruled that just because the state medical board found that Neely self-prescribed the drugs, ordered the doctor to have an addiction examination and suspended his medical license, it didn’t necessarily mean he was under the influence while performing surgery.
“A person of ordinary intelligence could conclude that the gist of the broadcast at issue was that the physician was disciplined for operating on patients while taking dangerous drugs or controlled substances,” Justice Eva Guzman wrote for the majority. “We therefore hold the physician raised a genuine issue of material fact as to the truth or falsity of that gist with evidence that he was not disciplined for taking dangerous drugs or controlled substances and had never performed surgery while taking them.”
Chief Justice Jefferson wrote a stinging dissent.
“We require substantial, not perfect, truth,” the chief justice opined. “With respect to substantiality, Neely admits he was using every one of the fifteen drugs identified in the Board’s order, plus a few more.”
Chief Justice Jefferson points to Neely’s testimony as proof.
Q: And these are actually drugs that you were taking, correct?
Neely: Yes, sir.
Q: I mean, you weren’t prescribing them to yourself to throw away, correct?
Neely: No.
Chief Justice Jefferson notes that Neely self-refilled his prescription for Paregoric, a controlled substance containing morphine, 12 times during a three month period in 1999 when he was treating patients.
“Here, the literal truth is as caustic as the gist and the gist reasonably depicts literal truth,” he wrote.
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