Can’t Apologize and Then Sue Someone for Libel When They Rely on Your Apology
From Burghardt v. Yvon, decided today by the California Court of Appeal, in an opinion by Justice William Dato, joined by Justices Cynthia Aaron and Truc Do:
Brigitte Yvon’s dog, Davie, was severely burned during or soon after undergoing routine surgery. Yvon settled the potential veterinary malpractice claim against Dr. James Theodore Burghardt, Jr. and his corporate practice, Companion Pet Care, Inc. (collectively, Burghardt). This case erupted later after Yvon posted a very uncomplimentary Yelp review about Burghardt and the incident. Burghardt responded by suing Yvon for[, among other things,] defamation ….
On February 21, 2019, Burghardt performed a “neuter and scrotal ablation surgery” on Davie. He told Yvon the surgery went well, and she took Davie home that same afternoon.
Davie “whimpered” the first night home. Over the next few days, he was lethargic and “whined some.” Yvon stayed home to care for him and “even accompanied him outside to go to the bathroom” to make sure he stayed out of harm’s way.
On March 1, Yvon noticed the fur on Davie’s back was wet. She assumed he had been licking the area. But when it was wet the next day, she pushed the thick fur aside and saw blood. She clipped away some of the wet fur, revealing a large oozing and bleeding wound. Yvon quickly took Davie to an animal hospital, where the veterinarian found this severe burn under his fur:
Yvon e-mailed this photograph to Burghardt. Within minutes, he telephoned stating, “I’m so sorry” and that he took “full responsibility.” He called it a “third degree” burn and told Yvon it was caused by a “heating pad” used during surgery.
Over the next several days, Burghardt said that he wanted to “do the right thing going forward” and again apologized to Yvon. He assured her that “a mistake like this can never happen again,” because “[w]e no longer use hot water bottles as heating elements. We have completely rid of that as a protocol…. We will never let it happen again.”
On March 15, Davie underwent surgery to remove the dead tissue. The resulting two-foot long incision is shown in the photograph below:
Dissatisfied with Burghardt’s delay in reimbursing her for Davie’s medical expenses, Yvon posted the following on Yelp:
“I brought my 2-year old yellow lab into Companion Pet Care on February 21st to get neutered. He w
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