Nominal Damages Aren’t Enough When There’s Evidence of Emotional Distress in Defamation Per Se Case

From Sullivan v. Schiman, decided Tuesday by the Illinois Appellate Court (Justice John Anderson, joined by Justices Linda Davenport and Matthew Bertani):

Schiman posted on Facebook—falsely—that [Dr.] Sullivan sexually abused her during [a medical examination at a hospital] …. Following a multi-day bench trial, the circuit court agreed that Sullivan was actually (not just presumptively) harmed but awarded $1 in nominal damages….

On January 23, 2022, Schiman went to the St. Margaret’s Hospital emergency room for treatment of severe abdominal pain. Sullivan, an emergency physician, performed a physical examination of Schiman. Based on the examination, Sullivan informed Schiman that he recommended performing a rectal exam to assess for the presence of blood and mucus. Schiman consented, and Sullivan performed the exam with a nurse present.

Shortly after the exam, Schiman accused Sullivan of performing an unnecessary rectal exam in an aggressive manner. The next day, she filed complaints with the hospital, the Illinois Medical Board, and the Spring Valley Police Department, alleging that Sullivan sexually assaulted her during the exam. On March 25, 2022, the Bureau County State’s Attorney’s Office declined to file any charges and closed the case.

On March 31, 2022, Schiman posted the following statement (the Post) on Facebook:

“WARNING SPRING VALLEY/PERU/SURROUNDING AREAS: DR. WILLIAM SULLIVAN, an ER doctor at St. Margaret’s Hospital, Spring Valley—SEXUALLUY ASSAULTED ME IN THE ER, WITH a nurse in the room. He was supposed to give me a rectal exam (I have had endless exams like this, I’m a 30 year Crohns pt) & without lube, he shoved his fingers aggressively up my rectum & when I cried out he violently twisted his hand inside of me. My rectum was torn. The nurse told me ‘he didn’t know you had been raped before!’ When I called someone in from the hospital, they isolated me & wouldn’t let my mom back. When they finally let her back, they gave her 5 min & stood with us the entire time. They then let him continue to treat me all evening. I had to do a rape kit exam & police interrogation. The state [sic] attorneys [sic] office threw out charges without even speaking to me. HE HAS A MEDICAL MALPRACTICE LAW DEGREE AND A MEDICAL DEGREE. He knows EXACTLY what he can get away with. The police told me this is not his first complaint to them. Yet St. Margaret’s keeps him on & defends him. DO NOT GO THERE. This man is violent & aggressive. Please don’t let your loved ones near him or this hospital!!!”

Schiman posted the statement on the City of Peru Updates and Information Facebook page (the City of Peru Facebook page). Perez, the page’s administrator, commented that he believed the post was true and compared Sullivan to another local physician who had been charged with a sex crime. Perez then made the Post a “featured post” so that it would be the first post on the Facebook page….

Here’s an excerpt from the appellate court’s discussion of the evidence at trial regarding the examination:

Sullivan learned that Schiman came to the emergency room complaining of abdominal pain. She had also visited the emergency room the previous day with a complaint of a headache. The earlier-treating physician had ordered lab work and an anti-inflammatory named Toradol.

According to Sullivan, when he first evaluated Schiman, she told him that she had taken Toradol that day and that she had already exceeded the maximum dose, so Sullivan cancelled the dose of Toradol. Schiman indicated her pain level was 10 out of 10. Schiman asked Sullivan what he was going to do about her pain and he stated that he was not comfortable giving her additional opiates to treat the pain. Sullivan was also uneasy prescribing opiate medication because “several things with her story weren’t matching up” and the previous day she received a large dose of Dilaudid, a strong opiate.

Sullivan did a full exam of Schiman. Based on the exam and her history of colitis, he was concerned Schiman had a colitis flare-up. In light of her pain and medical history, Sullivan informed Schiman that a rectal exam was needed, and she consented to the exam.

Per normal procedure, Sullivan asked a nurse, Megan McNally, to be present during the exam. McNally retrieved the lubrication and gloves and set them on a tray next to Schiman’s bed. Sullivan put on the gloves and lubrication and performed the exam. Sullivan indicated there was no blood on the glove, disposed of the gloves, washed his hands, and left the room.

After Sullivan exited the room, McNally likewise left the room and informed Sullivan that Schiman was upset because he had not asked her if she had been raped before. She also told Sullivan that Schiman made a complaint to an administrator at the hospital that the exam was aggressive and unnecessary. Schiman also requested that Sullivan stay out of her room unless absolutely necessary. Sullivan did not go back into the room….

And the appellate court’s analysis:

Here, the trial court found that the defendants’ statements and comments constituted defamation per se. That finding is not contested. The trial court acknowledged that the law presumes damages for per se defamatory statements and further found that Sullivan suffered damages of “mental anguish.” …

This case involves defamation per se, which has presumed damages. “Presumed damages are those which the law presumes must actually, proximately and necessarily result from the publication of the defamatory matter.” Again, these damages are inherently imprecise in connection with the harm suffered. The damages awarded are “an estimate of the extent of the loss the plaintiff has suffered in the past and would suffer in the future, either from a monetary or enjoyment of life standpoint.”  … [T]he evidence “need only tend to show a basis for the computation of damages with a fair degree of probability.” …

Here, the trial judge awarded only nominal damages, seemingly due to a lack of understanding of how reputational harm damages are assessed. Nominal damages are issued when a legal wrong has taken place but there was no actual, meaningful loss as a result of the legal wrong. Such damages are awarded when the insignificant character of the defamatory statement leads the trier of fact to conclude that no substantial harm has been done to the plaintiff’s reputation, and there is no proof that serious harm resulted from the defendant’s attack on the plaintiff’s character and reputation….

Here, a physician was publicly accused of committing a violent sexual assault under the guise of a medical examination. Several thousand people allegedly saw the accusation. No reasonable person can describe such an allegation as trivial or inconsequential. And even though Sullivan was not required to plead or prove reputational harm because the statement was defamatory per se, we observe that he testified that he was humiliated following the Post. He testified, and his wife corroborated, that he suffered loss of sleep, embarrassment, concern, changes in temperament, and changes in the way he treated patients….

The court therefore remanded the case for the trial judge to determine the magnitude of emotional distress damages.