On the other hand, it is not actionable to say of a surgeon, “He did poison the wound of his patient,” without some averment that this was improper treatment, for it might be proper for the cure of it. Nor to say of an apothecary, “He made up the medicine for my child wrong, through jealousy, because I would not allow him to use his own judgment” ([355]). Nor to charge a physician or surgeon with “malpractice,” if it appear that the word was not used or understood in a technical sense; and to charge a physician or surgeon with mere want of skill, or with ignorance or neglect, is not actionable per se, though untrue, unless the charge be of gross want of skill, or the like, so as to imply general unfitness ([356]).
Nor is it actionable to call a person who practises medicine or surgery, without legal qualification, a “quack or an |134| impostor,” for the law only protects lawful employment ([357]). Even though a medical man be duly registered in Great Britain, still, if he is practising in a colony which requires registration without complying with the colonial law, he may safely be called “a quack,” “a charlatan,” “a scoundrel not to be entrusted with the lives of people” ([358]).
Words imputing immoral conduct, profligacy or adultery, even when spoken of one holding an office or carrying on a profession or business, are not actionable unless they “touch him” in that office, profession or business. Thus, if adultery is alleged of a clergyman, it will be actionable, because if the charge were true, it would be a ground for degradation or deprivation, as it would prove him unfit to hold his benefice, or to continue the active duties of his profession. But if the same words are spoken of a physician, they will not be actionable without proof of special damage, as they do not necessarily affect the plaintiff in relation to his trade or profession ([359]).
Nor unless the words are spoken in connection with the professional duties of the plaintiff will an action lie for the words, “He is so steady drunk, he cannot get business any more;” or “He is a twopenny bleeder” ([360]).
It is no libel to write of a physician that he is in the habit of meeting homœopathists in consultation ([361]).
Where the plaintiff considers that the words spoken touch him in his profession or trade, he must always aver in the pleadings that he was carrying on the profession of a physician or surgeon, or the trade of a druggist, at the |135| time the words were spoken. Sometimes this is admitted by the slander itself, and if so, evidence is of course unnecessary in proof of this averment. But in other cases, unless it is admitted on the pleadings, evidence must be given at the trial of the special character in which the plaintiff sues. As a rule, it is sufficient for the plaintiff to prove that he was engaged in the profession or trade, without proving any appointment thereto, or producing a diploma or other formal qualification. For the maxim omnia presumuntur rite esse acta applies. But if the very slander complained of imputes to the medical practitioner that he is a quack or an impostor, not legally qualified for practice; or if the plaintiff aver that he is a physician and has duly taken his degree, then the plaintiff at the trial must be prepared to prove his qualification strictly by producing his diploma or certificate. In some cases the mere production of the diploma will not be sufficient proof of the plaintiff’s having the degree, but it may be necessary to prove that the seal affixed is the seal of a university having power to grant degrees; or in the case of the production of a copy of the diploma, that it has been compared with the original ([362]).
Whether or no the words were spoken of the plaintiff in the way of his business is a question for the jury to determine at the trial. There should always be an averment in the statement of claim, that the words were so spoken, and it should also be shewn in what manner the words were connected by the speaker with the profession ([363]).
Medical practitioners are of course equally liable with other men to an action for defamation, in respect of any |136| false and malicious communication, whether oral or written, made by them to the damage of another, in law or in fact; circumstances, however, frequently arise where, from the nature of their employment, it becomes their duty or interest to make some communication prejudicial to the character or conduct of another, and in such cases, where the occasion on which the communication was made rebuts the presumption of malice, (which the law infers from such a statement,) such communication is said to be privileged, and therefore, in order to sustain an action for defamation, the plaintiff must prove that the defendant was actuated by express or actual malice—that is, malice independent of the occasion on which the communication was made. The legal canon is, that a communication made bona fide, upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter, which (without this privilege) would be slanderous and actionable. This applies, moreover, though the duty be not a legal one, but only a moral or social duty of imperfect obligation, and also where the communication is made to a person not in fact having such interest or duty, but who might reasonably be, and is supposed by the party making the communication to have such interest or duty ([364]). Even where the evidence of duty is not present to the mind, but the speaker is impelled by a sense of propriety, on which he does not pause to reflect, and which he refers to no special motive, nevertheless, if his conduct in speaking the words be within the occasion of interest or of duty which is capable of protecting, the communication will be considered privileged ([365]).
Words spoken by the medical officer of a college concerning |137| the meat furnished to the institution; and words used by the medical attendant of a poor-law union about the wine supplied to the inmates, are privileged, in the absence of proof of actual malice ([366]). A statement made by a physician that an unmarried woman is pregnant is not a privileged communication, unless made in good faith to one who is reasonably entitled to receive the information ([367]).