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COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-139-CV A.J. MORRIS,
M.D.
APPELLANT
V. PHILLIP
OSBORNE, M.D.
APPELLEE
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM
OPINION[1]
------------ Introduction In this libel per se case,
A.J. Morris, M.D. appeals the trial court=s order granting a summary
judgment for Phillip Osborne, M.D.
In his sole issue, Dr. Morris argues that the trial court erred in
granting the summary judgment because (1) Dr. Osborne did not prove, as a
matter of law, that his statements were opinions, (2) extrinsic evidence
is not required to explain the defamatory meaning of Dr. Osborne
=s statements, and (3) he did
not establish any of his affirmative defenses, which include consent,
privilege, and statute of limitations. We affirm. Background Dr. Morris treated Antonio
Perez, Wesley Wommack, Jamie Hernandez, and Dallace Vickers at various
times for injuries they received on the job. Among other things, Dr.
Morris prescribed each of the patients Lortab, Diazepam, Vicodin, Valium,
Hydrocodone, Xanax, and Soma. The patients= insurance companies hired
Dr. Osborne to review Dr. Morris=s respective courses of
treatment. Dr. Osborne has a
background in pain and rehabilitation. Currently, he does not treat
patients; instead, his entire practice is related to administration,
writing and training, and doing independent medical evaluations (IMEs) and
peer reviews, primarily for HealthSouth Corporation.
For each of the four
patients, Dr. Osborne submitted to the insurance companies either an IME
or a peer review of Dr. Morris=s treatment. Dr. Morris complains about the
following statements in those reports: Patient Perez, IME report to
Ms. Susan Perry at RSKCo. dated August 6, 2002: 5. Are medical services, treatments
and diagnostics medically necessary and related to the injury?
. . . . I certainly would not find any
support in the use of Lortab, Diazepam or Vicodin. He also had Zantac, Zostrix and
Lamisil; and again these do not appear to be reasonable or medically
necessary either. All of
these office visits do not appear to have been reasonable or
necessary. The patient should
have been on maintenance care only with the only return to the
doctor=s office every three to six
months, and he should have been placed primarily on over-the-counter
medications. In my opinion he
should not be on any controlled substance. . . . 10. Is Diazepam reasonable and
necessary for this accident? I do not think [it] is
reasonable or necessary at all. Patient Wommack, Peer Review
to Ms. Brenda Williams at Crawford & Company dated August 28,
2002: Are prescription medications
being prescribed to the patient medically reasonable and
necessary? No. Patient Hernandez, Peer
Review to Rosemary Valencia at America First dated November 27,
2002: 3) Should the claimant have
to continue on medications?
If so, what type? . . . I do not believe that the
continued use of Vicodin and opiate derivative analgesic is reasonable or
necessary. Patient Vickers, Peer Review
to Ms. Pat Datcher dated September 14, 2003: What medications are R&N
for the 8/27/98 injury? The patient is currently
being prescribed Hydrocodone, Xanax and Soma on a very regular basis and I
do not feel that this is R&N at this time. Dr. Morris contends that Dr.
Osborne=s statements in these
reports are defamatory because they accuse him of prescribing medicine
without a valid medical purpose, which is a crime under the Health and
Safety Code.[2] He sued Dr. Osborne for libel per
se under section 73.001 of the civil practices and remedies code, which
defines libel as Aa defamation expressed in
writing or other graphic form . . . that tends to injure a living
person=s reputation and thereby
expose the person to public hatred, contempt or ridicule, or financial
injury or to impeach any person=s honesty, integrity,
virtue, or reputation.@[3]
Dr. Osborne moved for
summary judgment, asserting that Dr. Morris did not establish the elements
of his cause of action as a matter of law. As one ground for summary
judgment, Dr. Osborne contended that absolute judicial privilege applies
to protect his statements because they were made in the context of a
workers= compensation claim. The trial court granted Dr.
Osborne=s motion for summary
judgment and ordered that Dr. Morris take nothing. This appeal followed. Standard of
Review When a trial
court=s order granting summary
judgment does not specify the ground or grounds relied on for its ruling,
summary judgment will be affirmed on appeal if any of the theories
presented to the trial court and preserved for appellate review is
meritorious.[4] In a summary judgment case, the
issue on appeal is whether the movant met the summary judgment burden by
establishing that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law.[5] The burden of proof is on the
movant, and all doubts about the existence of a genuine issue of material
fact are resolved against the movant.[6]
A movant is entitled to
summary judgment on an affirmative defense if the defendant conclusively
proves all the elements of the affirmative defense.[7] To accomplish this, the movant
must present summary judgment evidence that establishes each element of
the affirmative defense as a matter of law.[8] If the movant has established its
right to summary judgment, the burden shifts to the nonmovant to present
evidence that would raise a genuine issue of material fact.[9] Summary judgment may be obtained
in a defamation case upon a proven plea of privilege.[10] Absolute
Privilege
In his motion for summary
judgment, Dr. Osborne contended that he had an absolute judicial privilege
because the alleged defamatory statements in the IMEs and peer review
reports were related to, and in contemplation of, a judicial proceeding,
specifically, the patients= workers= compensation claims. In response, Dr. Morris argues
that this privilege does not apply because Dr. Osborne did not make the
statements in a quasi-judicial capacity, he did not make the statements in
good faith, and because extending absolute judicial privilege to the facts
in this case would create injustice. A communication or
publication relating to both proposed and existing judicial and
quasi-judicial proceedings is absolutely privileged and one for which no
civil remedy exists, even if the communication is false and made with
express malice.[11] A proceeding is quasi-judicial in
nature if it is conducted by a governmental executive officer, board, or
commission that has the authority to hear and decide the matters coming
before it or to redress the grievances of which it takes cognizance.[12] Additionally, even communications
made in contemplation of or preliminary to a quasi-judicial proceeding are
privileged if they concern a matter that the quasi-judicial body is
authorized to investigate and decide.[13] Whether an alleged
defamatory statement is related to a proposed or existing judicial or
quasi-judicial proceeding, and is therefore absolutely privileged, is a
question of law.[14] All doubts should be resolved in
favor of the communication=s relation to the
proceeding.[15] The general purpose of the
workers= compensation act is to
compensate injured workers and their dependents through a system of
administrative reviews.[16]
The law is well-settled that the function of the workers= compensation board is
quasi-judicial in nature.[17] In fact, in Pisharodi v.
Barrash, the Corpus Christi Court of Appeals specifically applied the
absolute judicial privilege to the context of a workers= compensation claim.[18] The court held that a
doctor=s written report criticizing
a treating physician=s care of a patient,
submitted at the request of the patient=s workers= compensation carrier, was
privileged regardless of the libelous statements in the report.[19] Dr. Morris admits that this
case arose out of a series of medical peer reviews and an IME submitted by
Dr. Osborne regarding Dr. Morris=s treatment of patients
pursuant to the Texas Workers= Compensation Act. Dr. Osborne submitted all of the
allegedly defamatory reports to individuals at various insurance companies
for the purposes of assessing workers= compensation claims. Thus, his reports were made in
contemplation of a proceeding before the workers= compensation commission,
and the mere fact that any investigation did not culminate in a formal
adjudication did not alter its quasi-judicial nature.[20] Therefore, his reports are
privileged.[21] Additionally, although Dr.
Morris argues that Dr. Osborne must show he made the communication in good
faith in order to be protected by privilege, it
is the nature of an absolute
privilege that malice is immaterial.[22]
AWhereas malice dissolves a
qualified privilege, the persistence of an absolute privilege does not
turn on the presence or absent of good faith.@[23] Finally, Dr. Morris argues
that applying the absolute privilege to this fact situation leads to
injustice because it permits insurance companies to choose doctors for
peer reviews who recommend the least expensive, rather than the most
effective, treatment for the patients in question. The purpose of the
absolute privilege doctrine, however, is to protect the integrity of
judicial proceedings and ensure that the quasi-judicial decision-making
body gets the information it needs.[24] Our holding is consistent with
that purpose.
Conclusion For all of the foregoing
reasons, we hold as a matter of law that Dr. Osborne=s reports were absolutely
privileged and Dr. Morris=s libel claims are barred.[25] Therefore, we overrule Dr.
Morris=s sole issue and affirm the
trial court=s judgment.
PER
CURIAM PANEL A: CAYCE, C.J.; DAUPHINOT and
MCCOY, JJ. DELIVERED: February 16,
2006 [1]See Tex. R. App. P.
47.4. [2]See Tex.
Health & Safety Code Ann. '' 481.071(a), 481.128(1)
(Vernon 2003) (providing that a physician may not prescribe a controlled
substance except for a valid medical purpose and in the course of medical
practice). [3]Tex.
Civ. Prac. & Rem. Code Ann. ' 73.001 (Vernon
2005). [4]Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995);
Harwell v. State Farm Mut. Auto Ins. Co., 896 S.W.2d 170, 173 (Tex.
1995). [5]Tex.
R. Civ. P.
166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). [6]Sw. Elec. Power Co.,
73 S.W.3d
at 215. [7]Rhone-Poulenc, Inc. v.
Steel, 997
S.W.2d 217, 223 (Tex. 1999). [8]Ryland Group, Inc. v.
Hood, 924
S.W.2d 120, 121 (Tex. 1996). [9]City of
Houston,
589 S.W.2d at 678; Larson v. Family Violence and Sexual Assault
Prevention Ctr. of S. Tex., 64 S.W.3d 506, 514 (Tex. App.CCorpus Christi 2001, pet.
denied). [10]Krishnan v. Law Offices of
Preston Henrichson, P.C., 83 S.W.3d 295, 301 (Tex.
App.CCorpus Christi 2002, pet.
denied); Thomas v. Bracey, 940 S.W.2d 340, 342 (Tex.
App.CSan Antonio 1997, no
writ). [11]See Bird v.
W.C.W., 868
S.W.2d 767, 771-72 (Tex. 1994); 5-State Helicopters, Inc. v. Cox,
146 S.W.3d 254, 256 (Tex. App.CFort Worth 2004, pet. denied). This privilege
extends to any statement made by the judges, jurors, counsel, parties, or
witnesses, and attaches to all aspects of the proceedings, including
statements made in open court, pretrial hearings, depositions, affidavits,
and any of the pleadings or other papers in the case. James v.
Brown, 637 S.W.2d 914, 916 (Tex. 1982). [12]Cox, 146 S.W.3d at 256;
Attaya v. Shoukfeh, 962 S.W.2d 237, 239 (Tex. App.CAmarillo 1998, pet.
denied).
[13]Cox, 146 S.W.3d at 256; see
also Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909,
912 (1942) (stating that where there is an absolute privilege, no action
exists for defamation).
[14]Reagan, 166 S.W.2d at 912;
Cox, 146 S.W.3d at 256..
[15]Cox, 146 S.W.3d at 256;
Randolph v. Jackson Walker L.L.P., 29 S.W.3d 271, 278 (Tex.
App.CHouston [14th Dist.] 2000,
pet. denied). [16]Tex. Workers' Compensation
Com'n v. Patient Advocates of Tex., 136 S.W.3d 643, 652 (Tex.
2004); see generally Tex.
Lab. Code Ann. chs. 408, 410 (Vernon 1996) (providing the
procedures for awarding benefits to injured employees and contesting the
award of those benefits). [17]Washburn v. Assoc. Indem.
Corp., 721
S.W.2d 928, 932 (Tex. Civ. App.CDallas 1986, writ
ref=d n.r.e.); Daniels v.
Travelers Ins. Co., 606 S.W.2d 724, 725 (Tex. Civ. App.CFort Worth 1980, writ
dism=d); Moore v. Means,
549 S.W.2d 417, 418 (Tex. Civ. App.C1977, writ ref=d n.r.e.); see also
Vestal v. Tex. Employers= Ins. Ass=n, 285 S.W. 1041, 1044 (Tex.
Comm=n App. 1926,
judgm=t adopted). [18]Pisharodi v.
Barrash,
116 S.W.3d 858, 864 (Tex. App.CCorpus Christi 2003, pet.
denied). [19]Id. The court also held that
republication of the statements outside the judicial context waives the
privilege. Id. [20]Cox, 146 S.W.3d at 259. [21]Dr. Morris does not argue
that Dr. Osborne republished the statements outside of the peer review/IME
process; therefore, he did not waive his privilege.
[22]Cox, 146 S.W.3d at 259;
Pisharodi, 116 S.W.3d at 864. [23]Prappas v. Meyerland Cmty.
Imp. Ass=n, 795 S.W.2d 794, 799 (Tex.
App.CHouston [14th Dist.] 1990,
writ denied) (citing Runge v. Franklin, 72 Tex. 585, 589, 10 S.W.
721, 723 (1889)).
[24]Cox, 146 S.W.3d at 257;
Attaya, 962 S.W.2d at 239.
[25]In light of our holding, we
need not address Dr. Morris=s remaining arguments. See Tex. R. App. P.
47.1. |
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