Orthopedic surgeon Dr. Elliott Menkowitz has been fighting in court for over 20 years against Peerless Publications, Inc. for publishing articles that allegedly tarnished his career.
In April 1996, John Buckley, the president and CEO of Pottstown Memorial Medical Center (“PMMC”), “… told Dr. Menkowitz that his behavior of yelling at staff was unacceptable” and “… conveyed the Medical Executive Committee’s (“MEC”) decision “to suspend Dr. Menkowitz’s staff privileges or allow him to take a voluntary leave in an attempt to address his behavioral concerns ….”
Dr. Menkowitz told Buckley that he had been diagnosed with attention deficit disorder (“ADD”) and was taking medicine for his condition. As a result, in lieu of suspension, the MEC issued a stern warning that it would not tolerate verbal harassment of other physicians or employees.
However, about a year later, Dr. Menkowitz’s privileges were suspended because, according to the Pottstown Memorial Medical Center’s Medical Executive Committee, Menkowitz’s disruptive and unacceptable conduct continued to be a concern.
Soon thereafter (April 1997), the local Pottsdown paper, Pottstown Mercury Newspaper, published several news articles which stated, among other things, that his absence from the hospital had “spawned rampant rumors of professional misconduct regarding his treatment of an older female patient.”
On April 14, 1998, Menkowitz filed a defamation lawsuit against the newspaper and sought over $1 million in damages.
According to his testimony at trial, Dr. Menkowitz said that he fell into a deep depression after reading the Pottstown Mercury Newspaper articles. He further testified that the medications he received from his doctor to treat his depression caused fasciculations and tremors in his arms and hands, which was supported by expert testimony.
Bottom line: Dr. Menkowitz testified that the article-induced depression impaired his ability to perform surgery.
Peerless Publications (publisher of the Pottstown Mercury Newspaper) responded with arguments that its articles were not misleading and had been published in good faith, and Dr. Menkowitz’s injury to reputation and emotional and psychological injuries were caused by his suspension.
On March 2014, the jury sided with Menkowitz and awarded him $800,000 for past and future lost earnings, $200,000 for harm to his reputation, and $1 million in punitive damages.
Peerless Publications filed post-trial motions which led to the trial court vacating the punitive damages award based on its finding that there was no evidence of malice. Dr. Menkowitz filed an appeal seeking to reinstate the punitive damages award, and the newspaper cross-appealed to vacate all damages.
It turns out, Dr. Menkowitz’ appeal may not have been in his best interests.
The appeals court said because Menkowitz failed to show evidence of malice by the newspaper, he would only be entitled to damages if he could prove that his reputation was directly injured by the alleged false statements.
The Pennsylvania Superior Court found that any evidence of damage to his reputation stemmed from the suspension, not any implication of sexual or physical abuse from the news articles.
On December 15, 2017, fully 20 years after the original articles were published in the Pottstown Mercury Newspaper, the Pennsylvania Superior Court upheld not only the vacating of punitive damages, but vacated the entire judgment and compensatory damages award, leaving Dr. Menkowitz with nothing.
Of course, that’s not the end of the story.
Menkowitz appealed and on August 2018, the Pennsylvania Supreme Court agreed to hear the case, where it will review the legal standards applied by the lower courts.
The case is scheduled to be presented to the state’s highest court sometime in 2019.
Will Dr. Menkowitz be able to win back his damages, or will he be left in the dust after a grueling 20 years of court battles?
Or, will this Zombie case continue to live on in some, as yet unforeseen, form?
