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Morris v. Blanchette10/26/2005
Dr. A.J. Morris sued Dr. Katherine Blanchette for libel per se after Blanchette issued a peer review report to a worker 's compensation carrier which was critical of Morris's treatment of a patient. Blanchette filed a traditional summary judgment motion which the court granted. Morris contends in his sole issue that the court erred by granting the summary judgment motion because: (1) a genuine issue of material fact remains on the question of whether the statements at issue can be considered constitutionally protected opinions; (2) a single statement can give rise to a claim for libel per se, even if the statement does not suggest a habitual course of similar conduct; (3) the statements at issue are libelous per se because they do not require extrinsic evidence to establish their defamatory nature; (4) Morris's participation in the worker 's compensation system does not establish consent "to defamatory or untrue statements" made in the course of the peer review system; and (5) the statements are not privileged at common law or under the Labor Code. We will affirm.
Background
According to the summary judgment record, Morris treated Lawrence Davis for a lower back injury which he sustained at work on March 14, 2002. Among other things, Morris prescribed Lortab and later Xanax for Davis. Morris saw Davis on a regular basis for several months. He recommended physical therapy and that Davis not work. On August 7, Morris concluded that Davis had achieved maximum medical improvement and assigned him a five percent impairment rating. Morris continued to see Davis thereafter, maintaining the recommendation that Davis not work and continuing the prescriptions for Lortab and Xanax.
An insurance adjustor requested that Blanchette conduct a peer review apparently to evaluate the medical necessity of Davis's treatment regimen. According to Blanchette's report, the observations and opinions given therein were "based solely upon the chart data available for review." Blanchette did not personally examine Davis. To paraphrase, Blanchette concluded that, after Davis attained maximum medical improvement, there should be no medical necessity for further physical therapy or prescription medications.
The following excerpts from Blanchette's four-page report form the basis for Morris's lawsuit.
Dr. Morris continued to follow the claimant. On 08/26/02, the physician documented that the claimant "had pain and spasms." Unfortunately, he kept the claimant in an off work status and continued to prescribe Lortab and Xanax.
By definition, maximum medical improvement means that the claimant has reached a plateau in the course of illness. It may be possible that this claimant may need to continue taking some medications, preferably of an over-the-counter type, to maintain that status.
However, it would not really be appropriate to continue treating the claimant on an ongoing basis with any other additional types of therapy.
There would be no medical necessity for any additional treatment such as, physical therapy, work hardening, work conditioning, injections, prescription medications, or further diagnostic testing.
FINAL CONCLUSIONS
(2) A soft tissue injury should stabilize within a period of six to twelve weeks. This claimant was at maximum medical improvement by 08/07/02. There would be no medical necessity for any additional physical therapy, work hardening, work conditioning, or prescription medications.
Morris contends that the report is defamatory because it accuses him of prescribing medicine without "a valid medical purpose," which is a felony offense under the Health and Safety Cod
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