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Morris v. Blanchette10/26/2005
e. See TEX. HEALTH & SAFETY CODE ANN. ยงยง 481.071(a), 481.128 (Vernon 2003).
Fact or Opinion
The determination of "whether a publication is an actionable statement of fact or a constitutionally protected expression of opinion" "depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements." Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turner v. KTRK TV, Inc., 38 S.W.3d 103, 115 (Tex. 2000)) (second quotation only). A statement is considered to be an opinion when, upon consideration of "the entire context in which it was made," it cannot be objectively verified. See Bentley, 94 S.W.3d at 581; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 21-22, 110 S.Ct. 2695, 2707, 111 L.Ed. 2d 1 (1990)).
Thus in Milkovich, the Supreme Court considered a newspaper column in which the author accused a high school wrestling coach (Milkovich) of lying in a judicial proceeding concerning an altercation that happened at a wrestling match. See Milkovich, 497 U.S. at 3-5, 110 S.Ct. at 2697-98. In determining whether the statements at issue constituted subjective opinion or objectively verifiable facts, the Court observed:
We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. A determination whether petitioner lied in this instance can be made on a core of objective evidence by comparing, inter alia, petitioner's testimony before the OHSAA board with his subsequent testimony before the trial court. As the Scott court noted regarding the plaintiff in that case: " hether or not H. Don Scott did indeed perjure himself is certainly verifiable by a perjury action with evidence adduced from the transcripts and witnesses present at the hearing. Unlike a subjective assertion the averred defamatory language is an articulation of an objectively verifiable event." So too with petitioner Milkovich.
Id. at 21-22, 110 S.Ct. at 2707 (quoting Scott v. News-Herald, 25 Ohio St. 3d 243, 252, 496 N.E.2d 699, 707 (1986)).
As the Supreme Court of Texas has unambiguously stated, "To distinguish between fact and opinion, we are bound to use as our guide the United States Supreme Court's latest word on the subject, Milkovich v. Lorain Journal Co." Bentley, 94 S.W.3d at 579. Resolution of this issue is a question of law. Id. at 580.
Application
Morris contends that the statements at issue here are like those found defamatory in Pisharodi v. Barrash, which also involved a peer review on medical necessity conducted for a worker 's compensation insurance carrier. 116 S.W.3d 858, 860 (Tex. App.--Corpus Christi 2003, pet. denied). However, a review of excerpts from the statements at issue in Pisharodi reveals that they are not comparable.
In that case, the evaluating physician made numerous inflammatory remarks in the course of concluding that in his opinion the treatment recommended by the physician being evaluated was not medically necessary. Here are some excerpts:
Needless to say, this is a travesty.
Basically he has disregarded everything that was discussed with him and recommended and just went ahead and did a poorly executed, improperly done operation.
The surgery performed by Dr. Pisharodi was certainly not the same surgery which was authorized. It was what he wanted to do and not what was necessary and certainly not that which was approved. In my opinion it was totally unreasonable and substantially failed to meet the professional, recognized standards of that which was allowable and authorized.
. . . . Come hell or high water
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