A.J. Morris, M.D. v. Phillip Osborne, M.D. ( 2006 )

                                      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]

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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

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^[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.