Practice point: Plaintiff-physician, who had treated a workers' compensation claimant,
alleges that he was defamed in his profession by a report prepared by
defendant, a consultant hired by the workers' compensation insurer to
determine whether certain medications and treatment prescribed the
claimant were indicated. Plaintiff alleges that defendant exceeded the
scope of his assigned task by reporting that the medical records he
reviewed indicated possible fraudulent billing and unnecessary treatment
rendered, and recommending that the matter be referred to the Office of
Professional Misconduct and the Attorney General's Office.
The Appellate Division modified the motion court's determination and reinstated the action sounding in libel per se. Defendant's communications are not cloaked with absolute immunity
since there is no showing that he was engaged in a public function when
he published the report, pursuant to Workers' Compensation Law § 20. In addition, there were no adversarial proceedings at the time of the report's publication.
Neither are defendant's communications subject to
qualified immunity, as plaintiff's detailed allegations, accepted as
true for purposes of the motion, are enough to establish actual malice.
Student note: The Appellate Division affirmed dismissal of the claim sounding in intentional
infliction of emotional distress, as defendant's report does go
beyond all possible bounds of decency so as to be regarded as atrocious and intolerable in a civilized community.
Case: Schottenstein v. Silverman, NY Slip Op 04416 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: A motion to vacate a default.
