Morris v. Blanchette10/26/2005
, he was going to see that this unnecessary procedure would be performed on this poor, unfortunate young man.
I think that before anyone allows Dr. Pisharodi to attack this young man again, he needs to see another physician.
If the procedure is necessary as recommended by Pisharodi, it is necessary because of his ill advised, poorly performed, unnecessary procedure not of the standard of care in any community.
The stabilization at 2 levels was not necessary on this 24-year-old man's back when I saw him. If it is necessary now, it is necessary because of the arrogance and disregard to the patient's safety as exhibited by Dr. Pisharodi.
Without question, this case needs to be taken to the Texas Board of Medical Examiners as a clear indication of an ill conceived, unauthorized, poorly performed, unnecessary surgery.
Needless to say, the gouging demonstrated on the billing of $14,200.00 was primarily for Dr. Pisharodi's benefit and certainly not for the patient. . . .
In my opinion, Dr. Pisharodi has assaulted this man under the guise of medical treatment.
Pisharodi, 116 S.W.3d at 862-63.
The Corpus Christi Court characterized Barrash's report as "not only a scathing evaluation of Dr. Pisharodi's performance but an accusation that his actions in treating Escobedo amounted to nefarious criminal conduct, namely, assault." Id. at 863. Blanchette's report simply does not rise to this level.
First, the nature of the injury being reviewed in this case, a lower back injury, is often difficult to objectively verify. Thus, appellate courts have frequently affirmed zero damages verdicts in cases involving back injuries. See e.g. Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 123-24 (Tex. App.--San Antonio 2004, no pet.); Dunn v. Bank-Tec South, 134 S.W.3d 315, 324-26 (Tex. App.--Amarillo 2003, no pet.); Biggs v. GSC Enters., Inc., 8 S.W.3d 765, 768-69 (Tex. App.--Fort Worth 1999, no pet.); Crow v. Burnett, 951 S.W.2d 894, 897-99 (Tex. App.--Waco 1997, pet. denied).
Second, in the worker 's compensation system, the claimant, the provider, and the carrier all have the right to an independent review when there is a dispute on the issue of medical necessity. See 28 TEX. ADMIN. CODE ยง 133.308 (2005) (Tex. Dept. of Ins., Div. of Workers' Compen.). It is imperative to the effectiveness of the independent review system that an evaluating physician or panel be allowed to plainly state its opinion regarding whether the treating physician has provided or recommended medically necessary treatment. A holding that a report like Blanchette's is defamatory would undermine this system.
Finally, a peer review report like Blanchette's which concludes that the treating physician has exceeded that which is medically necessary can be made without the "scathing," inflammatory rhetoric employed in Pisharodi. In our view, Blanchette's report maintains the appropriate tenor and does not go beyond what was necessary to state her opinion that Morris's treatment exceeded that which was medically necessary.
Accordingly, we hold as a matter of law that Blanchette's report contains her "constitutionally protected expression of opinion" and is thus not defamatory. See Bentley, 94 S.W.3d at 579. Therefore, we overrule Morris's sole issue and affirm the judgment.
Before Chief Justice Gray, Justice Vance, and Justice Reyna
(Chief Justice Gray concurring in the result without a separate opinion)
Affirmed
|