Anderson v. Matz

• Decision Date: 06 December 1978
• Docket Number: No. 77-1749,77-1749
• Citation: 384 N.E.2d 759,23 Ill.Dec. 852,67 Ill.App.3d 175
• Parties: , 23 Ill.Dec. 852 Evelyn ANDERSON, M.D., Plaintiff-Appellant, v. Marshall MATZ, M.D., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 759

384 N.E.2d 759

67 Ill.App.3d 175, 23 Ill.Dec. 852

Evelyn ANDERSON, M.D., Plaintiff-Appellant, v. Marshall MATZ, M.D., Defendant-Appellee.

No. 77-1749.

Appellate Court of Illinois, First District, Third Division.

Dec. 6, 1978.

John J. Riordan, Riordan & Brown, Chicago, for plaintiff-appellant.

Lord, Bissell & Brook, Chicago (Robert B. Austin, Hugh C. Griffin, R. Bruce Duffield, Chicago, of counsel), for defendant-appellee.

McNAMARA, Justice:

This matter arises out of a libel action brought by plaintiff against defendant for certain comments contained in a report. The trial court granted defendant's motion to dismiss the complaint. The trial court found that the statements attributable to defendant which formed the basis of plaintiff's complaint were susceptible of an innocent construction and were privileged.

Plaintiff, Dr. Evelyn Anderson, is a pediatrician and encephalographer. She was retained to perform an electroencephalographic examination (hereafter referred to as an "EEG") upon an eleven year old girl who suffered a head injury in an automobile accident in 1970. The purpose of the EEG examination was to record and interpret electric currents generated by the brain. Dr. Anderson's report indicated abnormal brain tracings in the patient and she diagnosed epilepsy.

The other vehicle involved in the accident was insured by Liberty Mutual Insurance Company. After the injured child filed suit against the policy holder, the defendant, Dr. Marshall Matz, was retained by Liberty Mutual to examine the claimant and to render an opinion concerning the child's medical condition. Defendant, a neurosurgeon, examined the child, took a history, and was informed of plaintiff's EEG report. Defendant then submitted the following report to Liberty Mutual:

"At your request I had the opportunity . . . of examining this 11y/o student, who was accompanied by her father. They gave a history of an automobile accident on November 1, 1970, the patient at that time, being a backseat passenger when their vehicle was struck by another automobile. The patient states that she struck her head on the window dividing post between the front and back windows. There were no open wounds . . . . Since that time the patient states that 'perhaps' four times a year she has a headache, sometimes on the right side, occasionally on the left side that it is not of any severity does not cause her to miss school where she is an active student, participating in all the usual school functions, including gymnastics.

The cranial nerves including optic fundi are bilaterally intact. Movement of the neck is unrestricted and the reflexes in both upper and lower extremities are symmetrical. There is neither weakness, ataxia nor sensory loss and no pathologic reflexes could be demonstrated."

After opining that he could not perceive any causal relation between the minor blow to the head and the occasional headaches complained of by the child, defendant concluded:

"Apparently, there is some question about an EEG report, the tracing being 'abnormal'. I would be happy to review those reports, although, if they are the usual type of thing that Dr. Anderson puts out with her usual recommendations for anticonvulsive treatment they are of no clinical value and should not in any way influence your thinking on this case."

A copy of the foregoing report was delivered to claimant's attorney who brought it to the attention of plaintiff. In her complaint, plaintiff alleged that the last-quoted paragraph of the report was libelous in that it imputed to her a general lack of professional knowledge or skill. The complaint further charged that defendant was not himself an encephalographer and that he made the statement without first examining plaintiff's report or verifying the accuracy of his recommendation relating thereto.

Plaintiff contends that the trial court erred in finding that defendant's statements were susceptible of an innocent construction and in holding that the statements were protected by a privilege. We shall first consider whether the statements can be innocently construed. Plaintiff, emphasizing defendant's use of the word "usual" in reference to her reports, argues that the statements can only be construed in a manner which imputes to her not only a lack of professional ability in this instance, but also with respect to all other patients upon whom she has performed an EEG....