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Physician's amputation defamation suit reinstated

Posted On: Aug. 3, 2020 1:46 PM CST


A federal appeals court has reinstated litigation filed by a physician against a travel organization, holding the organization’s “anonymous” accounting in a magazine of the Mexico ziplining accident that resulted in his leg’s amputation defamed him while also providing enough information to identify him.

Assist America Inc. is a Princeton, New Jersey-based membership-based organization that provides global emergency medical services, according to Friday’s ruling by the 8th U.S. Circuit Court of Appeals in St. Louis in Richard H. Tholen, MD; Mary Jane Tholen v. Assist America Inc.

Dr. Tholen, a well-known board-certified plastic surgeon, suffered a severe knee injury in Mexico in April 2015 when he collided with a pulley while ziplining, according to the ruling.

Dr. Tholen asked Assist America for a medical evacuation, but the organization initially declined to evacuate him. By the time evacuation was approved, the Tholens had already purchased tickets for a flight out of Mexico. Less than a month after returning home, doctors amputated Dr. Tholen’s right leg above the knee, according to the ruling.

About a year later, Assist America published a case study on Dr. Tholen’s case in a journal that identified him as a doctor but did not reveal his name.

Dr. Tholen and his wife filed suit against Assist America for defamation in U.S. District Court in Minneapolis, alleging several statements in its account were false and defamatory, including that he had decided to make his own travel arrangements against Assist America’s recommendations, when that was not the case.

“Overall, the Tholens allege these statements painted them in a negative manner by falsely implying Dr. Tholen lost his leg because of his own decisions and actions,” the ruling said.

Assist America filed a motion to dismiss the Tholens’ claims, arguing in part the case study did not identify or refer to the Tholens, and therefore their identity was not readily ascertainable. The district court granted its motion to dismiss the case.

The lawsuit was reinstated by a divided three-judge panel. “Without considering the ultimate merits of the Tholens’s claim, we find that the Tholens sufficiently pled just enough to proceed beyond the motion to dismiss stage,” the ruling said.

“Here, there is plausible inference sufficient to survive a motion to dismiss, that persons who read the case study about a middle-aged doctor from the Midwest who injured his leg while ziplining in Mexico resulting in amputation would understand the article to be referencing Dr. Tholen,” the ruling said.

“The universe of identifiable subjects” who fit all the unique facts in the case “is practically limited to one,” it said, in reinstating the litigation.

The dissenting opinion states the complaint “fails to allege a plausible basis that the Tholens’ identity was ascertainable by readers of the case study.”

The Tholens’ attorney, Patrick M. Arenz, a partner with Robins Kaplan LLP in Minneapolis, said in a statement, “The Tholens are pleased with the decision. They look forward to moving this case forward and asking a jury to hold Assist America accountable for its defamatory article about their tragedy.”

Assist America’s attorney did not respond to a request for comment.