Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 24, 2006 

BRUCE B. FEYZ, M.D., 

Plaintiff-Appellee, 

v No. 128059 

MERCY MEMORIAL HOSPITAL; 

MEDICAL STAFF OF MERCY MEMORIAL 

HOSPITAL; RICHARD HILTZ, JAMES 

MILLER, D.O.; JOHN KALENKIEWICZ, M.D.; 

J. MARSHALL NEWBERN, D.O.; and 

ANTHONY SONGCO, M.D., 

Defendants-Appellants. 

_______________________________ 

BEFORE THE ENTIRE BENCH 

YOUNG, J. 

Plaintiff is a physician with staff privileges at defendant Mercy Memorial 

Hospital. This lawsuit arises from an internecine dispute over nursing orders for 

patient intake at the defendant hospital. Plaintiff’s insistence on requiring the 

nursing staff to use his special standing orders instead of defendant hospital’s 

standing orders eventually led to a conflict with defendant hospital and a peer 

review of plaintiff’s professional practices as well as disciplinary action. 
Plaintiff’s challenge of the peer review conducted by some of the 

defendants and the resulting disciplinary action taken against him requires that we 

consider the scope of immunity provided for peer review. In order to promote 

effective patient care in hospitals, the Legislature enacted MCL 331.531, 

commonly referred to as Michigan’s peer review immunity statute. The purpose 

of statutory peer review immunity is to foster the free exchange of information in 

investigations of hospital practices and practitioners, and thereby reduce patient 

mortality and improve patient care within hospitals. The Legislature obviously 

intended to protect peer review participants from liability for participation in this 

communicative and evaluative process. In order to create an environment in 

which such candid explorations of the quality of hospital patient care can occur, 

among other protections, the Legislature prohibited the discovery of 

communications made within the peer review process and granted immunity from 

liability to all who participate in peer review without “malice.” 

The primary question posed in this appeal is the scope of judicial review of 

peer review permitted under MCL 331.531. A secondary question is whether the 

judicially created “doctrine of nonintervention”—a doctrine suggesting that 

staffing decisions of private hospitals are generally beyond the scope of judicial 

review—is compatible with the peer review immunity statute. Finally, we must 

also construe the undefined peer review statutory term “malice.” 

2
 
 

 

Because the peer review immunity statute establishes qualified immunity 

from liability for peer review communication and participants who provide such 

communications, we conclude that there is no justification for recognizing the 

nonintervention doctrine that the lower courts in this state have applied in 

considering claims arising from peer review. We therefore hold that this doctrine 

cannot supplement or supplant the statutory immunity granted by our Legislature. 

Furthermore, there is no basis, statutory or otherwise, to justify the application of a 

nonintervention doctrine to general staffing decisions of a private hospital. We 

also hold that, consistent with the objects of the peer review immunity statute, 

malice should be defined as set forth by the Court of Appeals in Veldhuis v Allan.

1 

Thus, we hold that malice can be established when a “person supplying 

information or data [to a peer review entity] does so with knowledge of its falsity 

or with reckless disregard of its truth or falsity. Similarly, a review entity is not 

immune from liability if it acts with knowledge of the falsity, or with reckless 

disregard of the truth or falsity, of information or data which it communicates or 

upon which it acts.”2 

Accordingly, we vacate the judgment of the Court of Appeals and remand 

this case to the Monroe Circuit Court for further proceedings consistent with this 

opinion. 

1

 164 Mich App 131; 416 NW2d 347 (1987). 

3
 
 

 

 

FACTS AND PROCEDURAL HISTORY3 

Plaintiff is a physician with staff privileges at defendant Mercy Memorial 

Hospital.4

 Plaintiff was dissatisfied with defendant hospital’s standard nursing 

policy requiring nurses to document patients’ prescribed medications and dosages 

by either copying the label on their prescription containers or copying a list of 

medications carried by patients. As a consequence, plaintiff created his own 

specialized orders directing the nursing staff to obtain very specific information 

from plaintiff’s incoming patients about their prescription drug use. Plaintiff’s 

orders directed the nursing staff, as part of the admissions process for his patients, 

to assume a far more aggressive investigative role regarding patient medication.5 

(...continued) 

2 Id. at 136-137 (citation omitted). 

3

 Because this case was dismissed pursuant to MCR 2.116(C)(8), all 

material facts are taken from plaintiff’s complaint. 

4

 According to plaintiff’s complaint, the individual defendants hold various 

administrative positions at defendant hospital. Defendant Medical Staff of Mercy 

Memorial Hospital is “the organization of health care providers who provide 

health care to patients” at defendant Mercy Memorial Hospital. 

5

 According to plaintiff’s complaint, plaintiff’s standing orders required 

nurses to do the following: 

A. Have the family bring in home medications. 

B. Ask the patient (if alert) if the containers belong to the 

medications. If not, send the container(s) to the pharmacy for 

identification. 

(continued...) 

4
 
 

Defendants disapproved plaintiff’s standing orders, and instructed the 

nursing staff to ignore them. In several cases where the nurses disregarded 

plaintiff’s special orders and followed defendant hospital’s nursing directives, 

plaintiff prepared “incident reports” referring such cases to peer review 

committees for investigation of “potential medical errors.” Further, plaintiff began 

making notations in patient records that his disregarded orders were intended to 

“[p]revent serious medication errors in the past.” 

Defendants initiated peer review proceedings against plaintiff based on 

plaintiff’s failure to complete medical records6

 and his insistence that the nursing 

staff follow his standing orders rather than comply with hospital policy. An ad 

hoc investigatory committee reviewed plaintiff’s conduct and released its findings 

to the executive committee of defendant medical staff.7 Relying on the ad hoc 

(...continued) 

C. Ask the patient to look at his/her medications inside the 

container and tell how he/she has been taking them at home. 

D. List the dose and frequency of medications taken on the 

nursing assessment form as the patient is actually taking them at 

home. 

6

 Plaintiff admits that he refused to comply with hospital policy requiring 

physicians to sign transcriptions of their verbal orders. 

7

 Because this case was decided on motion solely on the basis of plaintiff’s 

pleadings, it is not clear whether the ad hoc investigatory committee and the 

executive committee were duly authorized “peer review” entities. It is not 

necessary to the resolution of this appeal that we determine their status. We 

therefore express no opinion on this issue. 

5
 
 

committee’s report, the executive committee referred plaintiff to the Health 

Professionals Recovery Program (HPRP) for a psychiatric examination.8 Plaintiff 

was placed on temporary probation. 

Plaintiff alleges that he ceased writing his standard orders because, in 

compromise, defendant hospital gave plaintiff use of the pharmacy consult service 

to implement plaintiff’s special orders. It appears that plaintiff’s orders regarding 

patient medication overburdened the staff of the pharmacy consult service, so the 

hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed 

placing his specialized orders in patients’ medical charts. As a consequence, 

defendants took further action and placed plaintiff on indefinite probation. 

Plaintiff continues to practice medicine and retains privileges at defendant 

hospital, but is restricted from using defendant hospital’s pharmacy consult service 

or insisting on compliance with his special orders. 

Plaintiff filed a complaint alleging violations of the Persons with 

Disabilities Civil Rights Act,9

 the Americans with Disabilities Act,10 the 

Rehabilitation Act of 1973,11 and 42 USC 1983 and 1985; invasion of privacy; 

breach of fiduciary and public duties; and breach of contract. The trial court 

8

 See MCL 333.16223. 

9

 MCL 37.1101 et seq. 

10 42 USC 12101 et seq. 

11 29 USC 794. 

6
 
 

 

granted summary disposition to defendants, concluding that all of defendants’ 

actions arose out of the peer review process and therefore defendants were 

immune from liability under MCL 331.531. The court, as an alternative basis for 

granting summary disposition, relied on the doctrine of judicial nonintervention, 

which provides that courts will not review private hospitals’ staffing decisions. 

The Court of Appeals, in a split decision, partially reversed the trial court’s 

award of summary disposition in favor of defendants,12 concluding that peer 

review immunity did not apply to statutory civil rights claims. The majority 

concluded that an alleged civil rights violation was not within the scope of peer 

review and that an alleged civil rights violation was “a malicious act.”13 

Furthermore, the majority held that the nonintervention doctrine did not prevent 

plaintiff from pursuing his civil rights claims, nor did the doctrine generally 

preclude plaintiff’s contract and tort claims. The majority held that the doctrine 

12 264 Mich App 699; 692 NW2d 416 (2005). The Court of Appeals 

affirmed the dismissal of plaintiff’s breach of fiduciary duty claim against all 

defendants on the basis of the nonintervention doctrine, because such a claim went 

to the heart of the majority’s interpretation of the doctrine—that private hospitals 

are not subject to greater judicial scrutiny than any other private entity. 

Furthermore, the Court of Appeals affirmed summary disposition of plaintiff’s 

nonstatutory claims against the members of the ad hoc committee, to the extent 

those claims were based on the actions of the ad hoc committee while acting in its 

role as a peer review committee. Plaintiff did not appeal these adverse holdings, 

and they are not before us. 

13 Id. at 704. The Court of Appeals majority used the following definition 

of malice: “‘Malice in law is not necessarily personal hate or ill will, but it is that 

(continued...) 

7
 
 

stands for the limited proposition that a private hospital’s staffing decisions are not 

subject to constitutional due process challenges. The majority concluded that the 

nonintervention doctrine did not create any greater insulation from judicial 

scrutiny than that enjoyed by any other private entity. In other words, the majority 

held that a private hospital’s staffing decisions are subject to the same level of 

judicial review as would apply to the actions of any other private entity. 

The Court of Appeals dissent agreed that an unlawful act of discrimination 

constituted malice,14 but disagreed that an unlawful discriminatory act was per se 

outside the scope of a peer review committee.15 The dissent would have affirmed 

the trial court’s dismissal of plaintiff’s tort and contract counts. The dissent also 

concluded that the majority improperly limited the scope of the nonintervention 

(...continued) 

state of mind which is reckless of law and of the legal rights of the citizen.’” Id. at 

704-705, quoting Black’s Law Dictionary (5th ed). 

14 The dissent relied in part on the following legal definition of “malice”: 

“‘The intent, without justification or excuse, to commit a wrongful act.’” Feyz, 

supra at 728 (Murray, P.J., concurring in part and dissenting in part), quoting 

Black’s Law Dictionary (7th ed). The dissent agreed with the majority that MCL 

331.531 would not bar valid discrimination claims. However, somewhat 

inconsistently, the dissent criticized the majority’s abandonment of the defamation 

definition of malice, adopted in Veldhuis, supra, and stated that the majority 

offered no justification or explanation for the abandonment. 

15 Although unstated, given the dissent’s preferred definition of malice, it 

appears that its rejection of a per se application of discriminatory claims as an 

exception to peer review immunity derives from the fact that not all discriminatory 

claims require proof of intent. See, e.g., Raytheon Co v Hernandez, 540 US 44, 

52-53; 124 S Ct 513; 157 L Ed 2d 357 (2003). 

8
 
 

 

 

 

doctrine. The dissent opined that the nonintervention doctrine precluded judicial 

review of contract and contract-related tort claims arising from hospital staffing 

decisions with regard to all defendants. 

This Court granted defendants’ application for leave to appeal.16 

STANDARD OF REVIEW 

The trial court granted defendants’ summary disposition under MCR 

2.116(C)(8). A trial court’s grant of summary disposition is reviewed de novo.17 

A motion for summary disposition brought pursuant to MCR 2.118(C)(8) tests the 

legal sufficiency of the complaint on the allegations of the pleadings alone.18 

When a challenge to a complaint is made, the motion tests whether the complaint 

states a claim as a matter of law, and the motion should be granted if no factual 

development could possibly justify recovery.19 

Questions of statutory interpretation, such as the proper construction of the 

peer review immunity statute, are reviewed de novo.20 Our role is to give effect to 

16 474 Mich 957 (2005). 

17 Wickens v Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 

(2001). 

18 Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). 

19 Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 

(1998). 

20 Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589 

(2006). 

9
 
 

 

the intent of the Legislature, as expressed by the language of the statute.21 We 

apply clear and unambiguous statutes as written, under the assumption that the 

Legislature intended the meaning of the words it has used in the statute.22 In 

defining statutory words, we must consider the “plain meaning of the critical word 

or phrase as well as ‘its placement and purpose in the statutory scheme.’”23 While 

words are construed according to their plain and ordinary meaning, words that 

have acquired a peculiar and appropriate meaning in the law are construed 

according to that peculiar and appropriate meaning.24 

ANALYSIS 

In Michigan, the Legislature has commanded hospitals to establish peer 

review committees to review “professional practices” in order to “reduc[e] 

morbidity and mortality and improv[e] the care provided in the hospital for 

patients.”25 That review must “include the quality and necessity of the care 

21 Grimes v Dep’t of Transportation, 475 Mich 72; 715 NW2d 275 (2006). 

22 Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 

(2005). 

23 Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 

(1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 

2d 472 (1999). 

24 MCL 8.3a. 

25 MCL 333.21513 provides, in pertinent part: 

The owner, operator, and governing body of a hospital 

licensed under this article: 

(continued...) 

10
 
 

 

provided and the preventability of complications and deaths occurring in the 

hospital.”26 In turn, hospitals use peer review evaluations when making staffing 

decisions.27 

A. THE JUDICIAL NONINTERVENTION DOCTRINE AND THE SCOPE OF 

JUDICIAL REVIEW OF PEER REVIEW 

The judicial nonintervention doctrine is a judicially created common-law 

doctrine providing that courts will not intervene in a private hospital’s staffing 

decisions. The concerns that gave rise to this doctrine are twofold. The doctrine 

is premised, in part, on the distinction between public and private hospitals. While 

public hospitals are state actors implicating adherence to constitutional 

requirements, such as affording due process to physicians, private hospitals are not 

(...continued) 

* * * 

(d) Shall assure that physicians and dentists admitted to 

practice in the hospital are organized into a medical staff to enable 

an effective review of the professional practices in the hospital for 

the purpose of reducing morbidity and mortality and improving the 

care provided in the hospital for patients. The review shall include 

the quality and necessity of the care provided and the preventability 

of complications and deaths occurring in the hospital. 

26 Id. 

27 See Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985). 

“Hospitals are required to establish peer review committees whose purposes are to 

reduce morbidity and mortality and to ensure quality of care. Included in their 

duties is the obligation to review the professional practices of licensees, granting 

staff privileges consistent with each licensee’s qualifications.” Id. at 169 (internal 

citations omitted). 

11
 
 

 

similarly constrained because they are not state actors.28 Therefore, it was posited 

that a private hospital’s staffing decisions merit less judicial scrutiny. 

The doctrine is also founded on the belief that courts are ill-equipped to 

review hospital staffing decisions because courts lack the specialized knowledge 

and skills required to adjudicate hospital staffing disputes. The judicial 

nonintervention doctrine, therefore, is a prudential doctrine not grounded in 

statutory or constitutional provisions that courts have invoked to resist 

adjudicating claims involving hospital staffing decisions and the decision-making 

29 process.

In Shulman v Washington Hosp Ctr,

30 a seminal case describing the 

doctrine, the United States District Court for the District of Columbia explained its 

foundational premises as follows: 

Judicial tribunals are not equipped to review the action of 

hospital authorities in selecting or refusing to appoint members of 

medical staffs, declining to renew appointments previously made, or 

excluding physicians or surgeons from hospital facilities. The 

authorities of a hospital necessarily and naturally endeavor to their 

28 Derderian v Genesys Health Care Sys, 263 Mich App 364, 376-377; 689 

NW2d 145 (2004), lv den 474 Mich 955 (2005). 

29 See id. The judicial nonintervention doctrine does not deprive a court of 

subject-matter jurisdiction as some Court of Appeals panels have erroneously 

concluded. Id. at 377 n 5, citing Veldhuis v Central Michigan Community Hosp, 

142 Mich App 243; 369 NW2d 478 (1985), and Bhogaonker v Metro Hosp, 164 

Mich App 563; 417 NW2d 501 (1987). Rather, the doctrine is one of self-restraint 

where courts decline to exercise jurisdiction. 

30 222 F Supp 59, 64 (D DC, 1963). 

12
 
 

 

utmost to serve in the best possible manner the sick and the afflicted 

who knock at their door. Not all professional men, be they 

physicians, lawyers, or members of other professions, are of 

identical ability, competence, or experience, or of equal reliability, 

character, and standards of ethics. The mere fact that a person is 

admitted or licensed to practice his profession does not justify any 

inference beyond the conclusion that he has met the minimum 

requirements and possesses the minimum qualifications for that 

purpose. Necessarily hospitals endeavor to secure the most 

competent and experienced staff for their patients. Without regard to 

the absence of any legal liability, the hospital in admitting a 

physician or surgeon to its facilities extends a moral imprimatur to 

him in the eyes of the public. Moreover not all professional men 

have a personality that enables them to work in harmony with others, 

and to inspire confidence in their fellows and in patients. These 

factors are of importance and here, too, there is room for selection. 

In matters such as these the courts are not in a position to substitute 

their judgment for that of professional groups. 

Relying on Shulman, the Michigan Court of Appeals adopted the doctrine 

of judicial nonintervention in Hoffman v Garden City Hosp.

31 The plaintiff in 

Hoffman sued a private hospital for denying him staff privileges, claiming, in part, 

that the hospital’s decision to deny privileges was “arbitrary, capricious and 

unreasonable . . . .”32 The defendant prevailed in the trial court on its motion for 

summary disposition. On appeal, the plaintiff urged the Court of Appeals to adopt 

the position that a private hospital holds a fiduciary duty to make its staffing 

decisions reasonably and for the public good.33 The plaintiff argued that the 

31 115 Mich App 773; 321 NW2d 810 (1982). 

32 Id. at 776. 

33 See Greisman v Newcomb Hosp, 40 NJ 389; 192 A2d 817 (1963). 

13
 
 

 

defendant hospital’s decision was “so ‘affected with a public interest’” that it 

should be subject to judicial review.34 The Hoffman panel rejected this argument 

and, in affirming the trial court, adopted the position articulated in Shulman that a 

private “hospital’s reasons for denying staff privileges” and “the decisions of the 

governing bodies of private hospitals are not subject to judicial review.”35 

In subsequent cases, the Court of Appeals relied on, as well as expanded, 

the judicial nonintervention doctrine set forth in Hoffman.

36 For example, in Sarin 

v Samaritan Health Ctr,

37 the Court of Appeals affirmed summary disposition of 

the plaintiff doctor’s breach of contract and tort claims arising out of an alleged 

breach of the hospital’s bylaws. Sarin held that the doctrine precluded judicial 

review not only of a private hospital’s decision on staff privileges, but also “‘the 

method by which the hospital personnel reached that decision,’”38 because judicial 

34 Hoffman, supra at 777. 

35 Id. at 778, 779, citing Shulman, supra. 

36 See Regualos v Community Hosp, 140 Mich App 455, 460-461; 364 

NW2d 723 (1985); Veldhuis v Central Michigan Community Hosp, supra; Dutka v 

Sinai Hosp of Detroit, 143 Mich App 170; 371 NW2d 901 (1985); Bhogaonker, 

supra. 

37 176 Mich App 790, 793-794; 440 NW2d 80 (1989). 

38 Id. at 794, quoting Veldhuis v Central Michigan Community Hosp, supra 

at 247. 

14
 
 

 

 

review of those claims would require courts to “interven[e] in the hospital’s 

[staffing] decision and interfer[e] with the peer review process.” 39 

More recently, in Long v Chelsea Community Hosp,

40 the Court of Appeals 

refined the scope of the nonintervention doctrine, and opined that the doctrine 

could not bar judicial review of all legal claims related to staffing decisions. The 

panel stated that the doctrine 

is limited to disputes that are contractual in nature. We decline to 

articulate a broad principle that a private hospital’s staffing decisions 

may never be judicially reviewed. Indeed, in doing so, we reiterate 

the proposition from Sarin that, under some circumstances, a court 

may consider a hospital’s decisions without violating the 

nonintervention principle. Private hospitals do not have carte 

blanche to violate the public policy of our state as contained in its 

laws. Had plaintiff in this case asserted that defendants violated 

state or federal law, we may have chosen to review his claim. In 

this case, however, plaintiff did not assert a violation of civil rights 

or a violation of a state statute.[41] 

Long confined the scope of the judicial nonintervention doctrine to disputes 

arising out of those decisions that are “contractual in nature.”42 

39 Sarin, supra at 795. 

40 219 Mich App 578; 557 NW2d 157 (1997). The issue in Long was 

whether MCL 331.531 created a private cause of action for malice. The Court of 

Appeals concluded that the statute created no such private cause of action. The 

Court also dismissed the plaintiff’s breach of contract claim on the basis of the 

judicial nonintervention doctrine. 

41 Long, supra at 586-587 (citation omitted). 

42 Id. at 586. 

15
 
 

 

In this case, the Court of Appeals majority largely abandoned the Hoffman 

rule that a private hospital’s staffing decisions are simply not subject to judicial 

review. Instead, it concluded that the judicial nonintervention doctrine only stood 

for the “modest proposition that a private hospital is subject only to the legal 

obligations of a private entity, not to the greater scrutiny of a public institution.”43 

Fundamental to the majority’s reinterpretation of the doctrine and retreat from 

earlier case law was the fact that only Long was binding precedent.44 Therefore, it 

embraced Long’s suggestion that private hospitals might be subject to statutory 

civil rights claims. With regard to breach of contract claims, the Feyz majority 

held that liability may be imposed as long as the breach of contract claim would 

not subject a private hospital to greater liability than what another private entity 

would face. 

While Court of Appeals panels have utilized variants of the doctrine of 

nonintervention for some years, this Court has never recognized or adopted the 

doctrine. Defendants urge this Court to adopt the doctrine and hold that the trial 

court properly dismissed plaintiff’s nonstatutory claims because those claims 

require a review of the hospital’s staffing decisions and the methods employed in 

reaching those decisions. We decline to do so because this judicially created 

43 Feyz, supra at 723. 

44 Id.; see MCR 7.215(J)(1). 

16
 
 

nonintervention doctrine is inconsistent with the statutory regime governing the 

peer review process enacted by the Legislature. 

The statutorily prescribed scope of judicial review over the peer review 

process is very narrow. The Legislature codified limited judicial review of the 

peer review process, permitting judicial review only when peer review participants 

act with malice.45 Contrary to the outcomes of cases such as Hoffman, Sarin, and 

Long, which afforded common-law immunity to hospitals, the hospital itself is not 

a protected review entity under the legislatively enacted peer review immunity 

statute.46 The Legislature could have permitted unqualified peer review immunity 

or extended it beyond the participants in the peer review process, but did not do 

so. Our courts must respect this policy choice. The nonintervention doctrine, 

which, in some formulations,47 precludes all judicial review of contract and tort 

claims that might have some relationship to peer review, is inconsistent with the 

45 MCL 331.531. However, as the Court of Appeals stated in Long, supra, 

MCL 331.531 does not create a private cause of action for malice. Malice is an 

exception to peer review immunity. Once a defendant has stated sufficient facts 

constituting peer review immunity, MCR 2.111(F)(3), a plaintiff has to put 

forward sufficient evidence of malice to invoke the exception to immunity. This 

burden is separate from the plaintiff’s burden to state a viable legal claim. 

46 MCL 331.531(2) specifically delineates which groups qualify as “review 

entities” entitled to peer review immunity. While a duly appointed peer review 

committee of a hospital is a designated review entity under MCL 

331.531(2)(a)(iii), the hospital is not. Therefore, the hospital cannot take 

advantage of the immunity granted under MCL 331.531(3)(b), which grants 

immunity only to review entities for acts or communications within their scope. 

17
 
 

legislative mandate that covers protection of the peer review communicative 

process only. The doctrine permits courts to supplant the policy choice made by 

the Legislature. Because “‘“[c]ourts cannot substitute their opinions for that of the 

legislative body on questions of policy,”‘”48 we decline to recognize the judicial 

nonintervention doctrine.49 

Additionally, we are not persuaded by the argument that courts are 

incompetent to review hospital staffing decisions as a basis for adopting the 

judicial nonintervention doctrine. This claim overlooks the reality that courts 

routinely review complex claims of all kinds. Forgoing review of valid legal 

claims, simply because those claims arise from hospital staffing decisions, 

amounts to a grant of unfettered discretion to private hospitals to disregard the 

legal rights of those who are the subject of a staffing decision, even when such 

decisions are precluded by statute. This is not to say that hospital staffing 

(...continued) 

47 See, e.g., Sarin, supra at 795. 

48 People v McIntire, 461 Mich 147, 153; 599 NW2d 102 (1999) quoting 

the dissenting opinion of Young, P.J., in the Court of Appeals in that case quoting 

Cady v Detroit, 289 Mich 499, 509; 286 NW 805 (1939). See also Beaudrie, 

supra at 140, where this Court refused to expand the judicially created public duty 

doctrine because such an expansion would have undermined the public policy 

choice of the Legislature, as expressed in the governmental tort liability act, which 

allows public employees to be subject to tort liability in limited circumstances. 

49 We note that the Legislature provided for the qualified immunity found 

in MCL 331.531 in 1975, seven years before the Court of Appeals adopted the 

judicial nonintervention doctrine. 

18
 
 

 

decisions, which involve specialized medical and business knowledge and 

considerations, are not entitled to some measure of deference. However, when 

those staffing decisions violate the legal rights of others, the judiciary must 

exercise its obligation to adjudicate legal disputes, except to the extent that the 

citizens of this state, through their elected representatives, have made a policy 

choice to shield such decisions from liability. 

B. PEER REVIEW IMMUNITY 

Peer review is “‘“essential to the continued improvement in the care and 

treatment of patients. Candid and conscientious evaluation of clinical practices is 

a sine qua non of adequate hospital care.”‘”50 In order to promote “the willingness 

of hospital staff to provide their candid assessment” in peer review proceedings,51 

the Legislature has enacted two primary measures to protect peer review activities 

from intrusive public involvement and from litigation. First, the Legislature has 

provided that the records, data, and knowledge collected for or by peer review 

entities are confidential and not discoverable.52 Furthermore, and relevant to this 

50 Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 42; 594 NW2d 

455 (1999), quoting Attorney General, supra at 169, quoting Bredice v Doctors 

Hosp, Inc, 50 FRD 249, 250 (D DC, 1970), aff’d without opinion 156 US App DC 

199; 479 F2d 920 (1973). 

51 Dorris, supra at 42; Attorney General, supra at 169. 

52 MCL 333.21515, MCL 333.20175(8), and MCL 331.533. Peer review 

records have thus been fully protected from disclosure even to the Attorney 

General when conducting a criminal investigation. Attorney General, supra at 

(continued...) 

19
 
 

 

 

case, the Legislature has granted immunity to persons, organizations, and entities 

that provide information to peer review groups or perform protected peer review 

communicative functions.53 

(...continued) 

168-170; In re Investigation of Lieberman, 250 Mich App 381; 646 NW2d 199 

(2002). Moreover, these nondisclosure protections apply regardless of the nature 

of the claim asserted by the party seeking the records. Manzo v Petrella & 

Petrella & Assoc, PC, 261 Mich App 705, 715; 683 NW2d 699 (2004). 

53 MCL 331.531 provides in pertinent part: 

(1) A person, organization, or entity may provide to a review 

entity information or data relating to the physical or psychological 

condition of a person, the necessity, appropriateness, or quality of 

health care rendered to a person, or the qualifications, competence, 

or performance of a health care provider. 

(2) As used in this section, “review entity” means 1 of the 

following: 

(a) A duly appointed peer review committee of 1 of the 

following: 

* * * 

(iii) A health facility or agency licensed under article 17 of 

the public health code, 1978 PA 368, MCL 333.20101 to 333.22260. 

* * * 

(3) A person, organization, or entity is not civilly or 

criminally liable: 

(continued...) 

20
 
 

The peer review immunity statute protects a person, organization, or entity 

from civil and criminal liability when carrying out three types of protected peer 

review tasks. First, immunity protects those that provide information or data to a 

review entity pursuant to MCL 331.531(1). Second, it protects specific “review 

entities,” such as a duly appointed peer review committee of a hospital,54 for those 

acts or communications within its scope as a review entity. Finally, subject to 

MCL 331.53255 and MCL 331.533,56 immunity applies to those who release or 

(...continued) 

(a) For providing information or data pursuant to subsection 

(1). 

(b) For an act or communication within its scope as a review 

entity. 

(c) For releasing or publishing a record of the proceedings, or 

of the reports, findings, or conclusions of a review entity, subject to 

sections 2 and 3. 

(4) The immunity from liability provided under subsection (3) 

does not apply to a person, organization, or entity that acts with 

malice. 

54 MCL 331.531(2)(a)(iii). As noted earlier, hospitals themselves are not 

listed protected review entities. 

55 MCL 331.532 provides that the release or publication of peer review 

records, reports, findings, and conclusions shall be only for the following 

purposes: (1) advancing health care research or education, (2) maintaining the 

standards of health care professions, (3) protecting the financial integrity of any 

governmentally funded program, (4) providing evidence relating to the ethics or 

discipline of a health care provider, entity, or practitioner, (5) reviewing the 

qualifications, competence, and performance of a health care professional with 

respect to the selection and appointment of the professional to a health facility’s 

(continued...) 

21
 
 

publish a record of peer review proceedings, or the reports, findings, or 

conclusions of a review entity. 

However, peer review immunity is not absolute. A person, organization, or 

entity that has acted with malice when engaging in a peer review function is not 

protected from liability.57 Because the Legislature did not define “malice,” we 

must determine what constitutes malice for purposes of peer review immunity. 

We are guided by the Legislature’s directive that words that have acquired a 

peculiar and appropriate meaning in the law shall be construed according to that 

peculiar and appropriate meaning.58 “Malice” is clearly a word that has acquired a 

peculiar meaning in the law. Indeed, reference to any legal dictionary confirms 

that “malice” has acquired several peculiar meanings, depending on the context in 

(...continued) 

medical staff, and (6) complying with § 20175 of the Public Health Code, MCL 

333.20175. 

56 MCL 331.533 provides that “the record of a proceeding and the reports, 

findings, and conclusions of a review entity and data collected by or for a review 

entity . . . are confidential, are not public records, and are not discoverable and 

shall not be used as evidence in a civil action or administrative proceeding.” 

(Emphasis added.) 

57 MCL 331.531(4). The immunity provided under MCL 331.531 is 

separate and distinct from the immunity provided by MCL 333.16244 for a person 

who acts in good faith in making a report to the HPRP. MCL 333.16244 

establishes a presumption that a person who makes such a report acted in good 

faith. This reporting immunity is not predicated on participation in peer review. 

58 MCL 8.3a. 

22
 
 

 

which it used. Our task in this case is to discern which peculiar meaning of 

“malice” is the most appropriate for purposes of the peer review immunity statute. 

The proper definition of “malice” for purposes of peer review immunity is 

an issue of first impression in this Court. Over the years, Court of Appeals panels 

have employed several divergent definitions. For instance, in Veldhuis v Allan, 

supra, the Court of Appeals adopted the defamation definition of “actual 

malice.”59 The panel in Veldhuis v Allan held that the statutory immunity 

accorded to peer review activities does not apply “if the person supplying 

information or data does so with knowledge of its falsity or with reckless disregard 

of its truth or falsity. Similarly, a review entity is not immune from liability if it 

acts with knowledge of the falsity, or with reckless disregard of the truth or falsity, 

of information or data which it communicates or upon which it acts.”60 

In this case, the Court of Appeals majority and dissent each adopted a 

different definition of “malice.” The majority quoted Black’s Law Dictionary (5th 

ed) for the proposition that “‘[m]alice in law is not necessarily personal hate or ill 

will, but it is that state of mind which is reckless of law and of the legal rights of 

59 See New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 

11 L Ed 2d 686 (1964); J & J Constr Co v Bricklayers & Allied Craftsmen, 468 

Mich 722, 731; 664 NW2d 728 (2003); Lins v Evening News Ass’n, 129 Mich 

App 419; 342 NW2d 573 (1983). It bears noting that the peer review immunity 

statute was amended to include the malice exception to immunity after the seminal 

New York Times v Sullivan case was decided. It is fair to say that Sullivan made a 

seismic change in the law concerning defamatory communications. 

23
 
 

the citizen.’”61 Using this definition, the Court of Appeals concluded that because 

civil rights acts establish citizens’ legal rights, acting in disregard of those rights 

represents a malicious act outside the scope of immunity granted under MCL 

331.531. 

Defendants contend that the defamation definition of “malice” utilized in 

Veldhuis v Allan is the appropriate standard for defining malice under MCL 

331.531. We agree.62 In defining malice for purposes of MCL 331.531(4), it is 

(...continued) 

60 Veldhuis v Allan, supra at 136-137 (citation omitted). 

61 Feyz, supra at 704-705. 

62 Justice Cavanagh concludes, largely by referencing a legal dictionary, 

that the Legislature intended a different definition of “malice” than we adopt 

today. Indeed, as the dissent correctly contends, reference to dictionaries may be 

“helpful” in ascertaining legislative intent. Post at 2, citing Ford Motor Co v 

Woodhaven, 475 Mich 425; 716 NW2d 247 (2006). However, because a word 

can have many different meanings depending on the context in which it is used, 

and because dictionaries frequently contain multiple definitions of a given word, 

in light of this fact, it is important to determine the most pertinent definition of a 

word in light of its context. See, e.g., Horace v City of Pontiac, 456 Mich 744, 

756; 575 NW2d 762 (1998). That the definition of “malice” we adopt today has 

been termed “actual malice” is not dispositive. We readily acknowledge that the 

word “malice” has a number of definitions; “actual malice” is simply one of the 

many terms that fall under the general umbrella of “malice.” See Black’s Law 

Dictionary (8th ed). However, what is critical to our analysis is that “[w]ords are 

given meaning by context or setting.” Consumers Power Co v Pub Serv Comm, 

460 Mich 148, 163 n 10; 596 NW2d 126 (1999), citing Tyler v Livonia Pub 

Schools, 459 Mich 382, 391; 590 NW2d 560 (1999). Peer review is a 

communicative process seeking to improve patient care through internal selfregulation. Given this context, we believe that the defamation definition of 

“malice” most appropriately furthers the Legislature’s intent in providing 

immunity to peer review participants. It is unclear to us why Justice Cavanagh 

(continued...) 

24
 
 

our duty “to discern and give effect to the intent of the Legislature.”63 To give 

such effect we must consider the “plain meaning of the critical word or phrase as 

well as ‘its placement and purpose in the statutory scheme.’”64 Peer review is a 

communicative process, designed to foster an environment where participating 

physicians can freely exchange and evaluate information without fear of liability if 

the hospital ultimately relies on peer review evaluations and adversely affects the 

reviewed physician’s hospital privileges. It is obvious that peer review immunity 

is designed to promote free communications about patient care practices, as both 

the furnishing of information to the peer review entity and the proper publication 

of peer review materials are acts which are granted immunity. All the protected 

activities relate to the exchange and evaluation of such information. Moreover, 

the peer review statutory regime protects peer review from intrusive general public 

scrutiny. All the peer review communications are protected from discovery and 

use in any form of legal proceeding. 

(...continued) 

selects—from among all the available definitions of “malice”—the definition he 

has chosen. 

63 Sun Valley Foods, supra at 236. 

64 Id. at 237, quoting Bailey v United States, supra at 145. 

25
 
 

The proper definition of “malice” for purposes of the exception to peer 

review immunity must be gleaned from this communicative context.65 The 

defamation definition of “malice” first used by the panel in Veldhuis v Allan most 

clearly comports with the statutory process established by the Legislature, because 

it is the one definition that specifically concerns and promotes honest 

communication. Moreover, the purpose of the malice exception is to keep 

physicians focused on performing honest and candid peer review, while protecting 

peer review participants from liability for every negative outcome that may be a 

by-product of such communication. The defamation definition of “malice” is 

uniquely addressed to communications and most effectively furthers this primary 

function of peer review. 

65 We note that MCL 331.531(3)(b) provides immunity to a review entity 

for all non-malicious acts or communications within its scope as a review entity. 

Indeed, it is difficult to conceive of an “act” that a properly functioning hospital 

peer review entity could perform that is not communicative in nature. The 

gathering and evaluating of information, as well as making recommendations 

based on that evaluation, are indeed “acts.” But these “acts” certainly also have a 

fundamental communicative aspect. Indeed, these acts are so inherently 

communicative that were a peer review entity to perform them in such a manner as 

to interfere with the purpose of keeping physicians focused on performing honest 

and candid peer review—to distort the peer review process without regard to the 

truth or falsity of the information it gathers or uses—such actions would also 

necessarily be communicative in nature and subject to the malice standard we 

adopt today. Moreover, if a hospital peer review entity were performing noncommunicative, non-evaluative “acts”—namely acts that do not advance the goal 

of the statute to improve delivery of hospital care—such “acts” are arguably not 

afforded immunity because they presumably would not be within the scope of the 

hospital peer review entity’s function. 

26
 
 

Under the “malice” definition used by the Feyz Court of Appeals majority, 

every potential invasion of a physician’s legal rights committed during peer 

review, regardless of the triviality of the act or the absence of knowledge of the 

inaccuracy of the information relied upon, would abrogate immunity. Such a 

definition of “malice” would undermine the peer review process by transforming it 

into a legalistic, rights-driven process rather than its proper statutory mission— 

honest professional medical evaluation of information about hospital patient 

practices.66 This result is inconsistent with the statutory goals of the peer review 

process and the stringent protections afforded to communicators and 

communications made in peer review. In providing the extensive immunity for 

peer review, the Legislature was obviously aware that such protections might 

insulate from review and sanction the participants’ liability for some adverse 

outcomes for physicians ultimately found by a credentialing hospital to lack the 

requisite professional skills or standards. Such adverse outcomes equally 

obviously were not, in and of themselves, deemed by the Legislature to be cause 

for liability for those participating in the peer review process. However, making 

66 It is noteworthy that the Legislature chose the unusual term “malice” 

rather than a more common term such as “intent” as an exception to the immunity 

granted. As stated, we believe that this is because the focus of the peer review 

process narrowly concerns communications and the defamation definition of 

“malice” is inexorably tied to communications. Equally significant, this definition 

became widely known following the publication of New York Times v Sullivan, 

supra. 

27
 
 

unfavorable evaluations, determinations, and recommendations based on negative 

information the peer review entity knows to be false would satisfy the malice 

standard we adopt.67 We conclude, based on the language and structure of this 

statute, that utilizing and acting on information known to be false is the type of 

activity that the Legislature intended to prevent by including the malice exception 

to immunity. The defamation definition of “malice” promotes the goals of peer 

review because peer review participants are not protected if they are not 

performing evaluations with a focus on improving patient care, but rather on the 

basis of false extraneous factors unrelated to patient care. 

C. HOSPITAL STAFFING DECISIONS ARE NOT IMMUNE FROM 

LIABILITY 

Our lower courts have made broad use of the now-repudiated 

nonintervention doctrine that provided, in some formulations, blanket immunity 

for any staffing decision associated with peer review. We believe that the 

widespread use of this doctrine has caused some confusion concerning the 

relationship between the immunity granted to participants in the peer review 

process and the nature of liability imposed on the actual decision maker in hospital 

staffing questions, namely, the hospital itself. As stated, decisions such as 

67 This is especially true because any disciplinary action taken against the 

physician on the basis of peer review findings would have to be disclosed upon 

request to any other hospital from which the physician is seeking staff privileges, 

credentials, or employment. See MCL 331.531(6) and MCL 333.20175(6). 

28
 
 

Hoffman, Sarin, and Long applied the common-law immunity provided by the 

nonintervention doctrine to hospitals without regard to the fact that the statute 

itself grants immunity only to enumerated peer review participants and their 

communications. Hospitals are not similarly covered by the peer review statute. 

It appears that judicial reliance on the sweeping nonintervention doctrine obviated 

the necessity of examining whether a hospital, as decision maker, was entitled to 

the immunity provided by the statute. 

In this case, defendants clearly assume and argue that an expansive 

construction of the peer review immunity statute will insulate the hospital 

defendant from liability. Contrarily, the Court of Appeals majority and dissent 

sought to construe the peer review immunity statute in a way to avoid insulating 

the hospital from liability for civil rights claims.68 None of these positions 

comports with a reasonable construction of the statute before us, and both 

misapprehend the scope of its protection. It is for this reason that both the 

majority and dissenting opinions of the Court of Appeals panel in this case strain 

to impose on the statutory term “malice” a construction that has little to do with 

the communicative function of the peer review process. 

68 It is also important to note that, until the decision in this case, none of the 

published peer review immunity statute cases involved a civil rights claim or an 

existing statutory claim. See, e.g., Long, supra; Veldhuis v Allan, supra; 

Regualos, supra. Indeed, as noted in footnote 40, at least one case involved an 

effort to create an independent cause of action for malice based on the peer review 

immunity statute itself. 

29
 
Because of the confusion on this point illustrated by the published peer 

review Court of Appeals cases, we take this opportunity to clarify that the peer 

review immunity statute extends only to the communications made, and the 

participants who make them, in the peer review process, not to the hospital that 

makes the ultimate decision on staffing credential questions. 

Our conclusion is rooted in the language of the immunity statute itself. 

Nothing in the peer review immunity statute suggests that it applies to any person 

or entity except those involved in the communicative concern of gathering data 

and evaluating hospital medical practices, as well as those who publish peer 

review information for the listed proper statutory purposes. It does not apply to 

the hospital decision maker that might rely upon the work product of a peer review 

committee. Moreover, MCL 333.21513(a) and (c) designate that the hospital is 

the statutory decision maker concerning staffing privileges. In other words, the 

peer review process may assemble and assess data about a physician’s 

competence, and it may even make a recommendation to the hospital leadership 

bearing on a staffing issue, but it is the hospital that remains ultimately and legally 

responsible for deciding issues relating to staffing privileges. 

Thus, the hospital does not fit within the protections afforded by the peer 

review immunity statute when it makes the ultimate staffing decision. 

Consequently, if the defendant hospital here is covered by one or more of the 

several state and federal civil rights acts plaintiff has sued under, and if staffing 

30
 
 

privileges are an activity protected from discrimination by such state and federal 

acts, then the hospital is required to defend its decision.69 What plaintiff may not 

do in suing the hospital defendant is invade the protections afforded to participants 

in the peer review process without establishing malice as we have defined it in this 

opinion. 

CONCLUSION 

We repudiate the doctrine of judicial nonintervention because it is 

inconsistent with the statutory peer review process established in MCL 331.531. 

Furthermore, we hold that malice exists when a person supplying information or 

data to a peer review entity does so with knowledge of its falsity or with reckless 

disregard of its truth or falsity. Similarly, a peer review entity is not immune from 

liability if it acts with knowledge of the falsity, or with reckless disregard of the 

truth or falsity, of information or data that it communicates or upon which it acts. 

Although this definition originated in the context of defamation, this definition is 

uniquely appropriate to Michigan’s peer review scheme, as peer review immunity 

is based on the communication of information about professional activities and 

standards. Moreover, this definition furthers the purpose of peer review immunity 

69 As stated earlier, this case was decided on motion. The merits of 

plaintiff’s statutory claims have not been decided. We express no opinion on the 

validity of any of plaintiff’s claims. 

31
 
in that it allows those who engage in the peer review process to candidly and 

honestly evaluate a physician’s competence without fear of exposure to liability. 

Accordingly, the judgment of the Court of Appeals is vacated, and we 

remand this case to the Monroe Circuit Court for further proceedings consistent 

with this opinion. 

Robert P. Young, Jr. 

Clifford W. Taylor 

Maura D. Corrigan 

Stephen J. Markman 

32
 
 

 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

BRUCE B. FEYZ, M.D., 

Plaintiff-Appellee, 

No. 128059 

MERCY MEMORIAL HOSPITAL; 

MEDICAL STAFF OF MERCY 

MEMORIAL HOSPITAL; RICHARD 

HILTZ; JAMES MILLER, D.O.; JOHN 

KALENKIEWICZ, M.D.; J. MARSHALL 

NEWBERN, D.O.; and ANTHONY 

SONGCO, M.D., 

Defendants-Appellants. 

CAVANAGH, J. (concurring in part and dissenting in part). 

I concur with many of the results reached by the majority opinion. 

Specifically, I agree that, because MCL 331.5311

 establishes qualified immunity 

1

 MCL 331.531 provides in relevant part: 

(1) A person, organization, or entity may provide to a review 

entity information or data relating to the physical or psychological 

condition of a person, the necessity, appropriateness, or quality of 

health care rendered to a person, or the qualifications, competence, 

or performance of a health care provider. 

* * * 

(continued...) 
 

for peer review entities and participants, there is no justification in this state for 

recognizing the judicial nonintervention doctrine. I also agree that the judicial 

nonintervention doctrine should not be applied to a private hospital’s general 

staffing decisions. I disagree, however, with the majority’s conclusion that the 

term “malice,” as used in MCL 331.531, should be defined under the principles of 

“actual malice” in accordance with defamation law. 

Notably, the Legislature did not define “malice” in MCL 331.531. Like the 

majority, I agree that “malice” is a term that has acquired a peculiar and 

appropriate meaning in the law. Therefore, this Court must construe the term 

“malice” according to its peculiar and appropriate legal meaning. Ford Motor Co 

v Woodhaven, 475 Mich 425; 716 NW2d 247 (2006); MCL 8.3a. Thus, because 

“malice” is a legal term, resort to a legal dictionary is helpful. Ford Motor Co, 

supra at 440. Reference to a legal dictionary confirms that “malice” is defined as 

(...continued) 

(3) A person, organization, or entity is not civilly or 

criminally liable: 

(a) For providing information or data pursuant to subsection 

(1). 

(b) For an act or communication within its scope as a review 

entity. 

(c) For releasing or publishing a record of the proceedings, or 

of the reports, findings, or conclusions of a review entity, subject to 

sections 2 and 3. 

(continued...) 

2
 
 

 

follows: “The intent, without justification or excuse, to commit a wrongful act” or 

“[r]eckless disregard of the law or of a person’s legal rights.” Black’s Law 

Dictionary (7th ed).2

 Because there is no indication that the Legislature intended 

to alter the meaning of the legal term “malice” or to use any variation of that term 

that may apply in unrelated contexts,3

 “malice,” as used in MCL 331.531 should 

be interpreted consistently with its legal definition and should not be defined, as 

the majority does, solely by reference to “actual malice” under defamation law. 

Simply stated, the Legislature used the term “malice,” not “actual malice.” 

As noted by this Court in J & J Constr Co v Bricklayers & Allied Craftsmen, 468 

Mich 722, 731; 664 NW2d 728 (2003): 

Under long-settled constitutional principles concerning the 

First Amendment rights of freedom of speech and freedom of the 

press, a public-figure plaintiff must establish that a defendant made 

(...continued) 

(4) The immunity from liability provided under subsection (3) 

does not apply to a person, organization, or entity that acts with 

malice. 

2

 Notably, the Court of Appeals majority concluded that “‘[m]alice in law is 

not necessarily personal hate or ill will, but it is that state of mind which is 

reckless of law and of the legal rights of the citizen.’” 264 Mich App 699, 704-

705; 692 NW2d 416 (2005), quoting Black’s Law Dictionary (5th ed). Further, 

the Court of Appeals partial dissent would have applied the defamation definition 

of “malice.” Id. at 726-727 (Murray, P.J., concurring in part and dissenting in 

part.). 

3

 Significantly, “actual malice” is defined as “1. The deliberate intent to 

commit an injury, as evidenced by external circumstances . . . . 2. Defamation. 

Knowledge (by the person who utters or publishes a defamatory statement) that a 

statement is false, or reckless disregard about whether the statement is true.” 

Black’s Law Dictionary (7th ed), p 968. 

3
 
 

defamatory statements with “actual malice” in order to prevail in a 

defamation action. New York Times[ Co v Sullivan, 376 US 254; 84 

S Ct 710; 11 L Ed 2d 686 (1964)] (establishing the “actual malice” 

standard for liability for defamation of public officials); Curtis 

Publishing Co v Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 

(1967) (extending the “actual malice” standard to public figures). 

“Actual malice” exists when the defendant knowingly makes a false 

statement or makes a false statement in reckless disregard of the 

truth. [Emphasis added.] 

Further, and as noted earlier, Black’s Law Dictionary (7th ed) defines “actual 

malice” in the context of defamation as “[k]nowledge (by the person who utters or 

publishes a defamatory statement) that a statement is false, or reckless disregard 

about whether the statement is true.” Accordingly, reference to a legal dictionary 

and this Court’s case law confirms that the term “actual malice” pertains in 

defamation law. And because the Legislature used the term “malice” in MCL 

331.531, not “actual malice,” there is no reason to suspect that the Legislature 

intended principles of defamation law to apply under the peer review statute. 

Additionally, interpreting “malice” as “actual malice” in accordance with 

defamation law would read the term “act” out of MCL 331.531. MCL 331.531 

provides that immunity will be provided for “an act or communication within its 

scope as a review entity” as long as the person, organization, or entity does not act 

with malice. Accordingly, it appears as if the Legislature had a broader 

understanding of immunity under MCL 331.531 than that contemplated by the 

majority. In other words, while the defamation definition of “actual malice” might 

arguably be warranted if MCL 331.531 used that term and the statute dealt only 

4
 
with a communication, the legal definition of “malice” must apply because MCL 

331.531 specifically deals with “act[s] or communication[s].” 

Further, I am also unpersuaded by the majority’s theory that the defamation 

law definition of “actual malice” must pertain to MCL 331.531 because the 

Legislature amended the statute to include a malice exception sometime after New 

York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), was 

decided. The Legislature added the malice exception roughly 11 years after 

Sullivan, and the majority has not pointed to any other evidence apart from an 11-

year gap suggesting that the amendment was a direct response to Sullivan, 

particularly where Sullivan uses the term “actual malice” and MCL 331.531 does 

not. Nor am I persuaded by the majority’s rationale that “act,” as used in MCL 

331.531, must have a “fundamental communicative aspect” and that any act that is 

“noncommunicative, nonevaluative” is outside the scope of peer review. Ante at 

26 n 65. There is simply no reason to suspect that the Legislature intended to 

create such a redundancy in MCL 331.531—i.e., immunity is provided for 

communicative acts or communications within the scope of peer review. Again, 

MCL 331.531 provides immunity for “act[s] or communication[s].” Nor am I 

persuaded by the majority’s rationale that the legal meaning of the term “malice” 

would circumvent the entire peer review process. Rather, a peer review 

participant is still provided immunity for a nonmalicious “act or communication 

within its scope as a review entity” as directed by the Legislature. 

5
 
In sum, I agree with the majority’s decision to remand this case to the 

circuit court. On remand, however, I would instead direct the circuit court to 

apply the legal definition of the term “malice” because there is no indication in 

MCL 331.531 that the Legislature intended any other meaning. 

Michael F. Cavanagh 

Elizabeth A. Weaver 

 Marilyn Kelly 

6