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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am a student doing a clinical rotation at a hospital in the

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I am a student doing a clinical rotation at a hospital in the state of New Mexico. This is the letter sent from the hospital to my school

10-01-13

It has come to our attention that a student xxx, scheduled at ___ hospital for clinical rotation, has attempted to falsify competencies. I have statements from 2 different employees that show ____ was asking to be signed on a specific exam and then trying to have different exams signed by covering the title of the exam. When the employee asked to see the competency book to put in comments ___ refused to hand over the book and said they could not enter comments anymore. After repeated attempts to see the book, the employee had to grab the book. The exam was signed by the employee was not the exam agreed to be signed. The student then proceeded to say the clinical instructor would accept the exam even though it was not the same exam.

___ would also come back to a few days to a week later asking to be signed off on exams he did not do or just observed.

We would like ___ removed from the clinical rotation at ___hospital and not to return effective immediately.
Every time I got something signed off I just handed over the book to them and never covered. Not only did no one EVER ask me to see my book so they could enter comments or what so ever, no one's ever asked me for the book unless I asked for something to be signed off.
That last message about me asking to be signed off on something days later. I've only asked to be signed off on a exam I did 1 day before, once. It was also in fact a exam I myself did.

This is going to get me failed and kicked out the program in school. Can I sue for defamation and what would be my chance of winning?
Submitted: 11 months ago.
Category: Legal
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Can I sue for defamation and what would be my chance of winning?

If one wishes to pursue a suit over this, then the chances of success are actually pretty good if what they had written was false.

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

This may be cause for defamation. The common law elements of a defamation action in New Mexico include the following: (1) publication to a third person (2) by the defendant (3) of an false fact (4) of and concerning the plaintiff (5) that is capable of being injurious to the plaintiff.

Arguably, they have communicated a false fact (or false facts) to a third party which may cause you injury. Thus, defamation is actionable here.

An attorney is recommended, of course. You can begin a search here. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 11 months ago.

I've glimpsed the new mexico state law on slander libel and defamation. While I know I have cause, I'm having a hard time trying to figure out how to prove damages, or is it possible to establish my case as defamation per se? Also don't I have to prove what they said was false? Which I'm not sure how to do...

Customer: replied 11 months ago.

a few days after the first letter. They send a second letter stating I was asking to be signed off on something I did not do, and I asked 2 weeks after I saw someone do it. I started my rotation on 9/4/2013, 2 weeks after that would be 9/18/2013. I have in my book with a signature already signed by another person 1 week prior to the accused date of attempted falsification. However, this is about the only prove I really have and I'm really not sure who to trust so I don't know who can vouch for me and who won't. Wouldn't this just be circumstantial evidence?

Expert:  Ely replied 11 months ago.
First of all, understand that libel and slander are two sides of the same coin. Libel is written defamation; slander is verbal defamation.

In addition, defamation per se is a doctrine that applies to libel/slender of one's vocation, or accusation of criminality, and a few other specific issues. In defamation per se, damages are ASSUMED. In simple defamation, they have to be proven.

However, in NM, defamation per se has essentially been abandoned. Smith v. Durden, 276 P. 3d 943 - NM: Supreme Court 2012: "The common law distinctions between defamation per se and [regular] defamation [] were also recognized as essentially obsolete in light of modern defamation jurisprudence."

In short, this is simple defamation, arguably. And if so, then one would have to show the following to be successful:

1) What they said was false, and
2) How this hurt you (i.e. failing the rotation and possibly the school program).

Wouldn't this just be circumstantial evidence?

In the end, it is all about which side is more convincing. The onus would be on you by preponderance of the evidence to illustrate that their claims were false. They can attempt to introduce the letters, but one can claim that they were signed under duress (if signed), or not signed at all.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

I see, you've been quite helpful. Although I'd like to speak to a defamation specialist if possible, do you think you can transfer me to one? Rest assured I will give you a good rating.

Expert:  Ely replied 11 months ago.
D,

Thank you for your kind words. By "defamation specialist," do you help you find a live attorney, or, a defamation specialist expert on this site?
Customer: replied 11 months ago.

a defamation specialist expert on this site.

Expert:  Ely replied 11 months ago.
D,

There is no "defamation" category on the site. Defamation falls into the general legal category, of which I am a participant. If it makes you feel better, I do know a thing or two about civil litigation believe me, so I am sure in my answer.
Customer: replied 11 months ago.

I see. I will need the names of the people who sent the letter. How will I be able to get those, and I would also need exam files from the hospital to cross check the signatures to prove they were in fact the correct signatures. How would I be able to get those?

Expert:  Ely replied 11 months ago.
I will need the names of the people who sent the letter. How will I be able to get those

Yes, via a process called DISCOVERY if the suit is filed. Discovery is the sharing of evidence and other pertinent facts by parties in a suit. See here.

and I would also need exam files from the hospital to cross check the signatures to prove they were in fact the correct signatures. How would I be able to get those?

The very same way; yes.
Customer: replied 11 months ago.

Great. One last thing, do you think you can give me an estimate of howmuch it would be to hire an attorney and deal with this whole case? It doesn't have to be precise.

Expert:  Ely replied 11 months ago.
D,

Sure.

About $300 for filing fees.

If your attorney (a) charges by hour, then at least $100 an hour, (b) if by flat fee, then $3,000 to $5,000, and (c) if by contingency then no fees until/unless you collect.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87525
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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