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03/31/95 SAFWAN BARAKAT v. MARSHALL MATZ

March 31, 1995

SAFWAN BARAKAT, M.D., PLAINTIFF-APPELLANT,
v.
MARSHALL MATZ, M.D., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Joseph N. Casciato, Judge Presiding.

Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Following the dismissal of his six-count complaint, plaintiff Safwan Barakat, M.D., appeals only the dismissal of two defamation counts against defendant Marshall Matz, M.D.

On appeal, plaintiff argues that (1) certain written statements included in reports prepared by a consulting physician for a worker's compensation insurance carrier are actionable as defamatory and (2) certain verbal statements of a consulting physician for a worker's compensation insurance carrier to a worker's compensation claimant are actionable as defamatory.

We find that the written statements contained in the consulting physician's reports to insurance companies are protected against a defamation action by qualified privilege and thus we affirm the dismissal of plaintiff's counts (counts I and II) as to the written statements. We also find, however, that the verbal statements made by the defendant to one of the worker's compensation claimants may be actionable and thus reverse the dismissal of plaintiff's count (count I) as to these oral remarks.

Both plaintiff and defendant are licensed physicians and neurosurgeons who practice in Illinois. At all relevant times, plaintiff was serving as a treating physician for two worker's compensation claimants, i.e., Patricia Hunley and Dale Lemke. Defendant serves as a paid medical consultant for various worker's compensation insurers, including Alexis Insurance Company which covered Patricia Hunley and the Martin Boyer Insurance Company which covered Dale Lemke. The insurers retain defendant to review claims for worker's compensation medical benefits and to make recommendations to the insurers regarding the necessity for medical treatment proposed by the treating physicians of the worker's compensation claimants.

Plaintiff filed a six-count complaint against defendant alleging claims of defamation, violations of the Uniform Deceptive Trade Practices Act and tortious interference with a prospective economic expectancy. Only the two defamation counts (counts I and II) are on appeal.

Count I alleged defamation for written statements included in defendant's report about Patricia Hunley to Alexis Insurance Company (referred to as the Alexis report) and for verbal statements made by defendant to Hunley during her office visit to defendant (referred to as the Hunley statements).

Count II alleged defamation for written statements included in defendant's report about Dale Lemke to the Martin Boyer Insurance Company (referred to as the Martin Boyer report).

The Alexis report which was attached to plaintiff's complaint stated in part:

"If you are not aware of [plaintiff's] reputation, I would appreciate hearing from you directly.

The treatment that she is getting at the office of [plaintiff] is in this writer's opinion unnecessary. She is not in need of epidural steroid injections. The myelogram and postmyelographic CT scan was a waste of resources, and in my opinion, this approach is onlytending to prolong her period of time loss. Objectively speaking, she can resume her usual employment activities without restriction at this date in time."

The complaint alleged that defendant stated "plaintiff's treatment of Patricia Hunley is unnecessary and wasteful and implies that the plaintiff has a poor professional reputation." This count does not suggest defendant guilty of a direct intention to injure plaintiff or that it was made in reckless disregard of plaintiff's rights.

After reviewing various medical reports pertaining to Lemke, defendant wrote the Martin Boyer report which provides in pertinent part:

"I would suggest that we obtain the films for further review. I should also advise you that my experience with the treating physician in this case has been highly unsatisfactory with respect to the appropriateness of surgical intervention, and I would not at this point recommend that you authorize any further treatment at his hands.

If possible, once again, I would request an opportunity to review the original diagnostic studies."

In count II relating to the Martin Boyer report, plaintiff makes a general allegation that the report was published "with reckless disregard as to its truth or falsity."

Count I was also predicated upon oral statements made by defendant to Ms. Hunley on the occasion of his examination of her. Plaintiff alleges:

"That on or about October 26, 1991, the defendant performed said examination at which time he told Patricia Hunley that the plaintiff 'was not any good,' that 'his practice was not any good,' that 'his practice was a joke,' and that 'his opinion was not any good.'" *fn1

Defendant filed a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1992)) claiming that the challenged statements were protected by absolute privilege, by qualified privilege or as professional opinions, not representations of fact. In the alternative, defendant contended that even if the statements at issue were ...


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