In the latest saga involving IME’s, the question arose as to whether an examinee could prosecute a defamation action against the examiner or any other entity involved with the publication of the alleged defamatory statement. The answer is yes, however, the examinor or any other entity involved with the publication of the alleged defamatory statement enjoys a qualified privilege.
In Green v Combined Life Ins. Co. of N.Y., 2010 NY Slip Op 00572 (1st Dept. 2010), the Appellate Division observed the following: “Plaintiff alleges he was defamed by defendant Downie’s written report to the insurer defendants of his interview with and examination of plaintiff. Even if defamatory, the statements are protected by a qualified privilege because they were made in a medical report to the insurer”
For those of you who have not had the misfortune of being involved in a defamation action, a qualified privilege offers protection to the speaker, scrivener or publisher of a defamatory comment, provided that the comment was not made with actual malice (see, New York Times v. Sullivan) or common law malice.
