This section contains the nature of the case and procedural background.

Smith (D), a trauma surgeon, and P, an anesthesiologist, provided emergency care to a critically injured patient. Smith (D) is employed full-time by Carilion Medical Center (D). P was employed by Anesthesiology Consultants of Virginia, Inc., which provides services to Carilion (D). The patient died. Smith (D) criticized P in the operating room in front of several other members of the operating team. Smith (D) stated: 'He could have made it with better resuscitation.' 'This was a very poor effort.' 'You didn't really try.' 'You gave up on him.' 'You determined from the beginning that he wasn't going to make it and purposefully didn't resuscitate him.' Smith (D) addressed P in the hallway outside the operating room, stating: 'You just euthanized my patient.' In a subsequent meeting that evening between Smith (D), P, and Smith (D) repeatedly stated that P 'euthanized' the patient. P sued Ds for defamation. Ds filed demurrers and pleas in bar asserting that Smith's (D) statements were non-actionable expressions of opinion or rhetorical hyperbole and that the statements were privileged. The circuit court entered an order sustaining the demurrers. The court then overruled the demurrers and denied the pleas in bar as to the euthanasia statements. Following discovery, Ds moved for summary judgment, again asserting their rhetorical hyperbole and qualified privilege arguments. P argued, among other things, that qualified privilege did not apply because Smith (D) did not make the euthanasia statements in good faith and was not discussing the care of the patient when he made them. The court ruled that the euthanasia statements were not rhetorical hyperbole. It ruled that qualified privilege applied to Smith's (D) statements and there was no evidence of common law malice necessary to overcome the privilege. It granted Ds summary judgment. P appealed.

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