Fordham Law Review Volume 53 Issue 3 Article 3 1984 Libel as Malpractice: News Media Ethics and the Standard of Care Todd F. Simon Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Todd F. Simon, Libel as Malpractice: News Media Ethics and the Standard of Care, 53 Fordham L. Rev. 449 (1984). Available at: https://ir.lawnet.fordham.edu/flr/vol53/iss3/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. LIBEL AS MALPRACTICE: NEWS MEDIA ETHICS AND THE STANDARD OF CARE TODD F. SIMON* INTRODUCTION D OCTORS, lawyers, and journalists share a strong common bond: They live in fear of being haled into court where the trier of fact will pass judgment on how they have performed their duties. When the doc- tor or lawyer is sued by a patient or client, it is a malpractice case.I The standard by which liability is determined is whether the doctor or lawyer acted with the knowledge, skill and care ordinarily possessed and em- ployed by members of the profession in good standing.' Accordingly, if * Assistant Professor and Director, Journalism/Law Institute, Michigan State Uni- versity School of Journalism; Member, Nebraska Bar. 1. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, § 32, at 185-86 (5th ed. 1984) [hereinafter cited as Prosser and Keeton]; see, e.g., Lucas v. Harem, 56 Cal. 2d 583, 591, 364 P.2d 685, 689, 15 Cal. Rptr. 821, 825 (1961) (en banc) (legal malpractice), cert. denied, 368 U.S. 987 (1962); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952, 954 (1981) (medical malpractice); Sullivan v. Henry, 160 Ga. App. 791, 791-92, 287 S.E.2d 652, 653 (1982) (medical malpractice); McPherson v. Ellis, 305 N.C. 266, 266, 287 S.E.2d 892, 893 (1982) (medical malpractice); Young v. Park, - RI. -,-, 417 A.2d 889, 890-91 (1980) (medical malpractice), cert. denied, 449 U.S. 1119 (1981); Siebert v. Fowler, 637 P.2d 255, 256 (Wyo. 1981) (medical malpractice). 2. Prosser and Keeton, supra note 1, § 32, at 186-87; see, e.g., Lucas v. Harnm, 56 Cal. 2d 583, 591, 364 P.2d 685, 689, 15 Cal. Rptr. 821, 825 (1961) (en banc), cert. denied, 368 U.S. 987 (1962); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952, 954 (1981); Sullivan v. Henry, 160 Ga.. App. 791, 800, 287 S.E.2d 652, 659 (1982); McPher- son v. Ellis, 305 N.C. 266, 270, 287 S.E.2d 892, 895 (1982); Young v. Park, - ILL -,-, 417 A.2d 889, 893 (1980), cert. denied, 449 U.S. 1119 (1981); Siebert v. Fowler, 637 P.2d 255, 257 (Wyo. 1981). Some courts read the standard as requiring a doctor or lawyer to possess the skill of the "average" member of the profession. Prosser and Keeton, supra note 1, § 32, at 187; see, eg., Green v. United States, 530 F. Supp. 633, 642 (E.D. Wis. 1982), aff'd, 709 F.2d 1158 (7th Cir. 1983); Spike v. Sellett, 102 Ill. App. 3d 270, 273, 430 N.E.2d 597, 600 (1981); Coleman v. McCarthy, 53 RI. 267, 269, 165 A. 900, 901 (1933). Many commentators and courts, however, argue that this reading of the standard is misleading because the malpractice standard only considers those in good professional standing and looks only to their minimum common skill. Prosser and Keeton, supra note 1, § 32, at 187; see Shevak v. United States, 528 F. Supp. 427, 432 (N.D. Tex. 1981). A doctor, such as a "special- ist," who represents himself as having greater skill is held to that higher standard of care. Prosser and Keeton, supra note 1, § 32, at 187; see Salis v. United States, 522 F. Supp. 989, 994 (M.D. Pa. 1981); Coyne v. Cirilli, 45 Or. App. 177, 182, 607 P.2d 1383, 1386 (1980). The malpractice standard has been applied most often in actions against doctors. Prosser and Keeton, supra note 1, § 32, at 186. The traditional standard held the doctor to the same standard of care as other doctors in the same community. See Prosser and Keeton, supra note 1, § 32, at 187-89. The country doctor who did not possess the same equipment and facilities or have the same opportunities for learning as did doctors in large cities was held to a lower standard of care. Id. Today, as courts begin to recognize that doctors share similar training, doctors are being held to similar standards throughout the country. Id. at 188. The "locality" or "community" rule is becoming a thing of the past as a general national standard is being applied in medical malpractice cases. See, ,,g., Sullivan v. Henry, 160 Ga. App. 791,800, FORDHAM LAW REVIEW [Vol. 53 the doctor or lawyer acted as other lawyers or doctors would have under similar circumstances, he is generally deemed not to have been negligent, as a matter of law.3 In libel cases, if the plaintiff is a public figure or public official, he must prove that the journalist acted with actual malice in order to establish liability.4 If the plaintiff is a private figure, he must prove that the jour- nalist was at least negligent.5 Thus in either case the plaintiff must prove that the journalist was at fault. Unlike actions against doctors or law- yers, however, a libel suit against a journalist is treated as a general tort action.6 Accordingly, in libel cases involving private plaintiffs, most courts instruct the jury that its task is simply to determine whether the defendant acted reasonably.7 The second half of the question-"in light of prevailing standards"- is often not addressed.8 Consequently, a jour- nalist's actions are judged against those deemed reasonable by other members of the public.9 What a jury has in mind when applying this ordinary negligence standard unaided by evidence of journalistic prac- tices is anyone's guess.1" Similarly, in applying the actual malice stan- 287 S.E.2d 652, 659 (1982); Brune v. Belinkoff, 354 Mass. 102, 107-09, 235 N.E.2d 793, 797-98 (1968); King v. Williams, 276 S.C. 478, 481-82, 279 S.E.2d 618, 619-20 (1981); Pederson v. Dumouchel, 72 Wash. 2d 73, 78-79, 431 P.2d 973, 977-78 (1967) (en bane); Waltz, The Rise and GradualFall of the Locality Rule in Medical MalpracticeLitigation, 18 De Paul L. Rev. 408, 415-18 (1969); Note, Medical Specialities and the Locality Rule, 14 Stan. L. Rev. 884, 886-91 (1962) [hereinafter cited as Medical Specialities]. Similarly, a professionwide standard is generally applied in legal malpractice cases. See, e.g., Letino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480 (3d Cir. 1979); Southland Mechanical Constructors Corp. v. Nixen, 119 Cal. App. 3d. 417, 426 n.3, 173 Cal. Rptr. 917, 921 n.3 (1981); Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977); Vitale v. Coyne Realty, Inc., 66 A.D.2d 562, 567, 414 N.Y.S.2d 388, 392 (1979) (Callihan, J., dissenting in part). 3. See, e.g., Lucas v. Hamm, 56 Cal. 2d 583, 591, 364 P.2d 685, 689, 15 Cal. Rptr. 821, 825 (1961) (en banc), cert. denied, 368 U.S. 987 (1962); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952, 954 (1981); Sullivan v. Henry, 160 Ga. App. 791, 800, 287 S.E.2d 652, 659 (1982); Spike v. Sellett, 102 Ill. App. 3d 270, 273, 430 N.E.2d 597, 600 (1981); Young v. Park, - R.I. -,-, 417 A.2d 889, 893 (1980), cert. denied, 449 U.S. 1119 (1981); Siebert v. Fowler, 637 P.2d 255, 257 (Wyo. 1981). There are some instances, however, in which the doctor or lawyer will be liable even though he conformed with professional standards of practice. See infra note 156 and accompanying text. 4. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Curtis Pub- lishing Co. v. Butts, 388 U.S. 130, 155 (1967). See infra notes 54-65 and accompanying text. 5. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (states may define standard but cannot "impose liability without fault"). See infra notes 28-30, 73 and ac- companying text. 6. See, e.g., Troman v. Wood, 62 I11.2d 184, 197, 340 N.E.2d 292, 298 (1975); Mc- Call v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 895 (Ky. 1981) (Lukow- sky, J., concurring), cert. denied, 456 U.S. 975 (1982); Schrottman v. Barnicle, 386 Mass. 627, 641-42, 437 N.E.2d 205, 215 (1982); Memphis Publishing Co. v. Nichols, 569 S.W.2d 412, 418 (Tenn. 1978); Taskett v. King Broadcasting Co., 86 Wash. 2d 439, 445, 546 P.2d 81, 85 (1976) (en banc). See infra notes 33-44 and accompanying text. 7. See infra notes 38-40 and accompanying text. 8. See infra notes 38-40 and accompanying text. 9. See infra notes 38-40 and accompanying text. 10. See infra notes 38-40, 52 and accompanying text. 1984] LIBEL AS MALPRA CTICE dard for public figure plaintiffs, liability may ensue only if there has been an extreme departure from the standards of the reasonable journalist.II The jury, however, is given little guidance as to what those practices 12 are.