Burgess vs. Busby – Invasion of Privacy Claim Dismissal Upheld – Intentional Infliction Claim Sustained
The Court of Appeals decision in Burgess is not so clear-cut. Rowan County physician Rudy Busby was one of several physicians sued in a medical malpractice case. Although he was not found liable by the jury, Dr. Busby put in every physician’s mailbox at Rowan Regional Medical Center a letter that identified the plaintiffs, jurors and witnesses from the case as those who have “sued doctors,” “found a doctor guilty” and “others of whom I am leery.” There were no allegations that any of the information in the letter was untrue. Nonetheless, a group of individuals identified in the letter sued Dr. Busby, alleging that the letter was a warning to the entire Rowan County medical community to punish them for their role in the judicial proceeding. The suit stated claims for intentional infliction of emotional distress, the tort of “outrage,” tortious interference with a contractual relationship, interference with a fiduciary relationship, invasion of privacy, unfair and deceptive trade practices, and obstruction of justice.
The case went to the Court of Appeals after the trial court dismissed the action. Although the opinion contains some helpful findings – such as a reiteration of this state’s rejection of the private facts invasion of privacy tort – the court reversed the trial court dismissal of the claims for intentional infliction of emotional distress and obstruction of justice. No doubt we all are offended by Dr. Busby’s actions, but what is troubling about the Court’s decision is that it flies in the face of protection for communication of truthful, lawfully obtained information and, in particular, the U.S. Supreme Court decision in Falwell v. Flynt. In the Falwell case, the Supreme Court held that a person complaining of another person’s speech could not side-step the requirements of the First Amendment by labeling his complaint something else. In fact, intentional infliction was one of the very torts alleged by Falwell and rejected by the Supreme Court.