Defamed by a Doctor? Caselaw Update

attorney-picWhat rights do I have when a doctor writes something false or hurtful in my medical records during a workers’ compensation claim? 

CASE:   Jasarevic v. Foster, A15A2218 (citation pending), decidedJanuary 26, 2016.

Mr. Jasarevic was injured at work, and the State Board of Workers’ Compensation determined that Dr. Foster would be his authorized treating physician. An authorized treating physician (“ATP”) has a lot of power in a workers’ compensation claim, because the ATP is allowed to make decisions about whether an injured employee is able to work, what treatment the employee can get, and whether the employee can be referred to other specialists. The ATP also shares his or her notes with the insurance company in most situations. So whatever the ATP writes about your case in his medical notes has a huge impact on the care and benefits that you get.

In this case, the doctor put a report in the injured employee’s file. The report said that the injured employee had made threatening statements during a medical appointment, that Dr. Foster considered the employee a threat to his staff, and that he refused to treat the injured employee any longer.

Mr. Jasarevic then filed a lawsuit against Dr. Foster, alleging that Dr. Foster’s statements were false and prevented him from getting necessary medical care. He filed this lawsuit without the help of an attorney.

The trial court, and then the Court of Appeals, both dismissed Mr. Jasarevic’s lawsuit. The Court of Appeals concluded that, “Statements made by a physician in his or her medical records that are pertinent and material to a workers’ compensation claim, such as the statements at issue here, are privileged as a matter of law and cannot serve as a basis for a claim of libel.” In other words, even if what Dr. Foster wrote had been both false and deprived the injured worker of needed care, the doctor was immune from suit.

 

Thoughts on the Case

This case raises serious concerns, and it highlights the danger of filing a lawsuit without an attorney. The Court basically concluded that a doctor can write whatever he wants into an injured workers’ medical records, and that an injured worker cannot bring a libel or slander suit against a doctor, even if the doctor writes something false.  What if the doctor in this case had falsely written that the injured employee was a child molester or a drug addict? This kind of false statement can destroy a workers’ compensation or personal injury claim; it has a drastic impact on the injured worker. If Mr. Jasarevic had an attorney to guide him through this process, I cannot help but think he would have been better off.

This case also highlights the need for anyone with an injury claim to be respectful to the treating doctor. Even if you do not like the doctor’s opinion, or you feel that the doctor is not listening to you, respectful behavior is a must. For better or worse, the doctors in your case have a lot of power, and you need them to be on your side. Many doctors and clinics are repeatedly used by the same insurance companies, and they are looking for any excuse to torpedo and damage your case. Don’t give them that excuse by raising your voice or making a scene. Remember, you may have to see the same doctor again, even for an entirely different injury.

If you feel like your doctor is working for the insurance company or your employer instead of you, contact a lawyer immediately. An experienced lawyer is your best defense against the insurance company and any biased doctors you may encounter.

 

Tristan B. Morrison, Esq.

Mr. Morrison welcomes your comments. If you have a question or would like a free consultation regarding your injury claim, you may contact him at 404-800-LAWS (5297). E-mails should be sent to mh@morrisonhugheslaw.com

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