Editor’s note: This article was originally published June 29, 2013
A lawsuit alleging an Austin TV station aired a report that defamed a local physician appears to be back on track for trial after the Texas Supreme Court reversed decisions by two lower courts.
In a newly issued ruling, a majority of state Supreme Court justices ruled the libel lawsuit Dr. Byron Neely filed against KEYE and former investigative reporter Nanci Wilson should proceed.
Neely filed suit following a TV report about him that aired on KEYE.
Wilson’s seven-minute report on Neely ran in January 2004, according to court documents. An introduction to the story indicated Neely "had been disciplined for prescribing himself and taking dangerous drugs, had a history of hand tremors and had been sued several times for malpractice in the last few years."
In the filing, Neely said his practice "collapsed" after KEYE’s story aired. "His referrals from other physicians dwindled, existing appointments cancelled (citing the broadcast as the reason for the cancellation), his income diminished, and his home went into foreclosure."
A summary judgment in favor of KEYE was issued in state district court in Travis County, and a state appeals court upheld that verdict. The Texas Supreme Court’s decision reverses those rulings.
Marc Fuller, an attorney representing Wilson and KEYE, provided the American-Statesman with a written response to the high court’s ruling Friday.
"We have just received the court’s lengthy opinion and are reviewing it. It’s clear that the court’s opinion reflects a legal ruling regarding a dismissal motion and is not in any way a final adjudication of the parties’ rights or the plaintiff’s claims. We are confident if the case goes to trial that a jury will find in our favor," Fuller’s written statement said.
The KEYE report, which largely focused on two patients, Paul Jetton and Wei Wu, came soon after Neely entered into an "agreed order" with the Texas Medical Board, according to documents.
"In the order, the board found that Neely had self-prescribed medications between 1999 and 2002 and had a prior history of hand tremors. Further, the board found that he was subject to disciplinary action due to his ‘inability to practice medicine with reasonable skill and safety to patients, due to mental or physical condition’ and his self-prescription of medications."
Initially the board suspended Neely’s license, according to the state Supreme Court ruling, but he was instead placed on three years’ probation.
Records indicate an "enterobacterial infection" set in after Neely installed a shunt to drain fluid from a tumor in Jetton’s brain in 1999. The infection reportedly left Jetton in "a debilitated state even after 12 subsequent brain surgeries."
Jetton and his wife sued Neely, and the physician says he settled.
Neely also operated on Wu in 1999, court records show. "After removing a brain tumor, Neely reported seeing small deposits of metastatic melanoma on the surface of Wu’s brain during surgery. Soon after Wu recovered from the operation and learned of the melanoma deposits from his oncologist, he commited suicide."
The ruling indicates Wu’s ex-wife later sued Neely "on behalf of her minor son, but the suit was dismissed on procedural grounds."
Neely and KEYE differ on the gist of the story, according to the Supreme Court’s ruling, largely forming the basis for the suit.
"KEYE maintains that the gist of the broadcast ‘concerned controversies and allegations surrounding Neely’s care of Jetton and Wu, the malpractice lawsuits filed by Jetton and Wu’s ex-wife, an autopsy report by the Travis County Medical Examiner, a public disciplinary action by the Medical Board , and Neely’s response to the allegations.’ "
Neely, meanwhile, asserts "that a person of ordinary intelligence could conclude that the gist of the broadcast, based on the content and placement of these statements, was that Neely was disciplined for operating on patients while using dangerous drugs or controlled substances," which he says is inaccurate and defamatory.
The case has been sent back to a lower court for trial. A trial date has not yet been set.