An appellate court in Texas has affirmed the dismissal of a defamation suit filed by an Austin-based neurosurgeon against a local television station, ruling that accurate and fair reports on third-party allegations do not amount to defamation.

The Texas Court of Appeals, Third District, at Austin, ruled earlier this month in Neely v. Wilson that the defendants' report of third-party allegations against the plaintiff did not amount to defamation though the underlying allegation itself could be defamatory and false in nature.

The three-judge bench ruled that in suits against media defendants, a statement is not actionable if it is 'substantially true.'

Under the 'substantial truth' doctrine, minor inaccuracies are not actionable as long as the publication's 'gist' or 'sting' is true...and a 'true' statement for these purposes is one that is not more damaging to the plaintiffs reputation than a literally true statement would have been, the Feb. 9 judgment stated.

In the case, the plaintiff, Dr. Byron D. Neely, sued CBS affiliate KEYE, its owner Viacom and investigative reporter Nanci Wilson for defamation after KEYE broadcast an investigative news report that negatively portrayed Neely's work as a neurosurgeon.

Neely, who had maintained a private practice in Austin for more than twenty-five years and had performed over four thousand surgeries, was named as a defendant in seven medical malpractice lawsuits. In four the suits, the claims against the doctor were settled. Of the other three, in one suit, the claims against Neely had been non-suited with prejudice. In the remaining two cases, both of which had been filed by pro se plaintiffs, the claims against the doctor had been involuntarily dismissed.

In its report, KEYE stated that Neely had been sued four times but explored the subject matter of only two of these actions.

In the first case, a former collegiate and professional football player who is now physically disabled and unable to walk unassisted, has blamed his physical condition on the doctor's negligence, claiming that while Neely treated him, the doctor was impaired by dependency on steroid and opiate drugs, and suffered hand tremors attributable to the medications he was allegedly taking.

In the second case, a woman alleged that after performing a surgery on her ex-husband to remove a brain tumor, Neely informed him that he was suffering from a malignant melanoma that had spread to numerous sites in his brain and would probably have a short time to live. The news triggered the man into depression and a few days later, he committed suicide by jumping off an interstate overpass. However, contrary to Neely's diagnosis, the autopsy revealed that the man did not suffer from any metastatic cancer in his brain.

In his defamation suit, Neely had claimed that the defendants must prove the truth of these allegations.

However, the appellate court relied on the 1990 Texas Supreme Court case McIlvain v. Jacobs where the supreme court held that if a broadcast was substantially correct, accurate, and not misleading, and the defendant had established the substantial truth of the broadcast, it was not required to prove the truth of the actual allegations.

The appellate court also pointed out the rationale behind the supreme court's interpretation. Otherwise, the media would be subject to potential liability every time it reported an investigation of alleged miscoduct or wrongdoing by a private person, public official, or public figure. Such allegations would never be reported by the media for fear an investigation or other proceeding might later prove the allegations untrue, thereby subjecting the media to suit for defamation, the supreme court had reasoned.

In Neely's case, the court ruled that the KEYE defendants did not make any actionable assertions in its reports and rather, those assertions made by the defendants are substantially true.

Hence, the court ruled the KEYE defendants had stopped short of making actionable defamatory and false assertions about Neely in their January 19, 2004 broadcast and held that the district court did not err in granting summary judgment on the grounds that the statements in question were, as a matter of law, not actionable because they are considered to be either substantially true or not defamatory.

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