---
url: 'https://www.fmjlaw.com/defamation-claim-by-nurse-anesthetist-knocked-out-by-federal-court-for-lack-of-malice/'
title: Defamation Claim by Nurse Anesthetist Knocked Out by Federal Court for Lack of Malice
author:
  name: Adam
  url: 'https://www.fmjlaw.com/author/adam-brownfmjlaw-com/'
date: '2025-02-10T21:23:27+00:00'
modified: '2025-02-10T21:23:28+00:00'
type: post
categories:
  - Article
  - Thought Leadership
tags:
  - defamation
  - ella
  - john ella
published: true
---

# Defamation Claim by Nurse Anesthetist Knocked Out by Federal Court for Lack of Malice

A U.S. Magistrate Judge ruled that a nurse anesthetist could not amend his complaint to add a claim of defamation against his former employer because the communications were protected by qualified privilege and there was no evidence of ill will or malice. *Bergh v. Sanford Health*, 24-CV-3054 (D. Minn. Feb. 5, 2025). On August 15, 2022, the Plaintiff (Bergh) performed an assessment of a patient’s breast placement to ensure proper positioning for surgery in a face-down position. Another nurse observed Bergh’s examination of the patient’s breasts and reported to the hospital’s administration that she believed his actions were improper. That same day hospital administration members met and determined that Bergh had failed to obtain the required consents from the patient. They terminated his employment and reported him to both law enforcement and the Minnesota Board of Nursing. The Board of Nursing did not impose discipline and law enforcement did not bring charges. Bergh believed that the hospital failed to properly investigate and that the decision makers were not familiar with proper procedures for anesthetists.

Bergh initiated a lawsuit against the hospital and its Chief Medical Officer. When he sought leave to amend his complaint and add claims, including a claim of defamation, the Court denied the request because the defamation claim was futile under the law. First, the Court noted that good faith reports to the Minnesota Board of Nursing are subject to statutory immunity pursuant to Minn. Stat. Section 148.264, subd. 1. Second, the Court pointed out that Defendants were required to report suspected maltreatment of a vulnerable adult to law enforcement under the Minnesota Vulnerable Adults Act (“MVAA”).

Overall, the Court found that the hospital’s communications were subject to a qualified privilege because they were made upon a proper occasion, from a proper motive, and based upon reasonable or probable cause. The Court cited examples of other cases in which subjective references from employers were considered to be subject to qualified privilege. The Plaintiff attempted to argue that the Defendants should not enjoy a qualified privilege because their comments were not made in good faith and therefore fell into the exception for malice.

The Court disagreed and provided a road map for how to determine whether a defendant in a defamation case acts out of malice. It noted that there were no “contextual inferences from which to conclude that Defendants fabricated a way to harm him professionally on the day of the alleged incident.” It also found that the statements did not “exaggerate” what the nurse reported and were not published in a “manner that suggested Defendants’ motivation was to harm Mr. Bergh rather than to report suspicions of maltreatment.” Nor did it find the timing suspicious, considering that the MVAA requires reports to be made “immediately.”

Although the accusations of maltreatment were ultimately found to be without merit, plaintiff’s career was undoubtedly damaged as a result. He was not able to sue for monetary damages, however. Most communications about an employee by an employer will be subject to a conditional privilege. This case shows that one may not avoid the privilege by simply pleading malice – one must allege facts that show malice.

If you have questions about defamation or anything involving healthcare licensing, HR, or employment matters, please contact Attorney [V. John Ella](https://www.fmjlaw.com/professional/v-john-ella/).  John represents individuals and businesses before health licensing boards and in all types of defamation matters.

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