Erickson v. Aetna Life & Cas. Co.
| Decision Date | 24 September 1984 |
| Docket Number | No. 2-83-0580,2-83-0580 |
| Citation | 127 Ill.App.3d 753,83 Ill.Dec. 72,469 N.E.2d 679 |
| Court | United States Appellate Court of Illinois |
| Parties | , 83 Ill.Dec. 72 Dr. Norris A. ERICKSON, Plaintiff-Appellee, v. AETNA LIFE & CASUALTY COMPANY, Defendant-Appellant. |
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, David P. Meyer, Kendall D. Griffith, Chicago, for defendant-appellant.
Casey, Krippner & Callahan, John P. Callahan, Geneva, for plaintiff-appellee.
Plaintiff Dr. Norris A. Erickson filed this libel action in the circuit court of Kane County seeking damages from defendant Aetna Life & Casualty Company (Aetna). Dr. Erickson, a chiropractor, treated a patient insured by defendant. Subsequently, on the basis of information contained in the defendant's file regarding plaintiff's treatment of the insured, plaintiff brought a claim against defendant for libel. After a jury trial plaintiff was awarded both compensatory and punitive damages. Defendant appeals.
On appeal defendant Aetna contends that the statement contained in defendant's file was not libel per se and that the statement was absolutely privileged because it was used in a workers' compensation proceeding. Defendant argues it was entitled to judgment notwithstanding the verdict because the evidence overwhelmingly favored defendant on the following issues: (a) whether the statement was defamatory; (b) whether the statement was false; (c) whether the defendant knew the statement to be false; and (d) whether defendant acted with actual malice on the punitive damages question. Defendant also contends that it is entitled to a new trial because the verdict is against the manifest weight and because the trial court failed to give defendant's tendered special interrogatories.
Plaintiff treated Pauline Ratajczak for injuries she sustained while employed as a school bus driver. Ratajczak saw two other doctors after her November 16, 1979, injury. In early 1980 plaintiff sent a bill for chiropractic services. When a period of time had passed and he was not paid he contacted defendant. Plaintiff testified that John Markuson, a senior account supervisor for defendant Aetna, told him that the bill was not paid because plaintiff was not a physician. Markuson testified that he discussed the case with Sheila Lance, medical cost coordinator for defendant, and they determined that the treatment rendered was unnecessary and the amount of the bill was unreasonable.
The alleged defamatory publication in this case was made by defendant on a form entitled "Chiropractic Claims Review Committee of Illinois, Claim Evaluation Report." In June of 1980 Aetna was advised of the existence of this committee. The purpose of the committee was to provide claims review of individual chiropractic claims that involved the relationship between the doctor, patient and "third party payer." A blank "Claim Evaluation Report" accompanied the letter from the chairman of the committee.
The Ratajczak case was assigned to Richard O'Brien, a trainee claim representative for defendant. He was told to obtain a chiropractic claim review on the file. O'Brien testified that after a cursory reading of the instructions, he filled out the form himself. He conceded that it was a mistake for him to have filled out the form and that he did not discuss the contents of the form with anybody in his office. The form was filled out as follows:
3. The frequency of care rendered to patient (is) (is not) usual and customary
as seen in evaluating chiropractic claims, relative to the diagnosis, type of
case, and information in the file as submitted.
4. The term of care (is) (is not) usual and customary as seen in evaluating
chiropractic claims, relative to the diagnosis, type of case, and information
in the file as submitted.
5. The treatment of the condition, as diagnosed by the attending doctor (is)
(is not) within the scope of chiropractic practice and licensure in the State
of Illinois.
6. As of 6-3-80 the care rendered in this instance, relative to the diagnosis
and information submitted in the file, appears to be of essentially a
maintenance type of care.
7. REMARKS:
The duration of the care and treatment in this case appears to be
unreasonable and unnecessary for the injury involved. Pauline Ratajczak
treated with Dr. Erickson from November 19, 1979 until June 3, 1980.
Total charge for this treatment was $892.50.
SECRETARY: MEMBERS:
GERALD A. DRISCOLL, D.C. VIRGIL C. JOHNSON, D.C. ROGER D. HULSEBUS, D.C.
5547 W. Monstrose Ave. 526 Dundee Avenue 7th & Washington
Chicago, Illinois 60641 Elgin, Illinois 60120 Oregon, Illinois 61061
312-282-6648 312-741-5806 815-732-2826
The "Claim Evaluation Report" in issue was a printed form which contained six printed comments regarding the type of care received by the claimant. As is apparent from the form itself, O'Brien indicated that both the frequency of care rendered and the term of care was not what was usually and customarily seen in evaluating chiropractic claims, relative to the diagnosis, type of case, and information submitted. O'Brien also entered the following language: O'Brien had no medical or chiropractic background other than his experience with workers' compensation files.
O'Brien testified that the claim report he prepared required that a check be attached to it, but he did not know if a check was prepared or whether or not the form was ever sent to the chairman of the Chiropractic Claims Review Committee of Illinois. O'Brien had made two status reports on the file which noted that they were waiting for the outcome of the chiropractic review committee.
Defendant's attorney, William Vanderwater, read O'Brien's report and believed that it supported Aetna's contention that the chiropractic care was not necessary and had been unnecessarily prolonged. Vanderwater showed the claim report to the attorney for Ratajczak, Richard Hannigan. Hannigan considered the report to be damaging to his client's case, and testified that the report "blew his case out of the water." Vanderwater introduced the report in evidence at the workers' compensation hearing. Ratajczak did not receive the temporary benefits or payment of the chiropractor's bill she had sought at that stage of the proceedings. Subsequently Dr. Erickson contacted Hannigan and told him that the committee report had never been prepared by the chiropractic review committee. Later Vanderwater also told Hannigan that the exhibit was a phony. Hannigan contacted the arbitrator and determined that it would be necessary to appeal the decision of the arbitrator to the full commission. After he discussed this with Aetna, Aetna was willing to negotiate a settlement for the first time. Aetna settled the case for $30,000, conditional upon Ratajczak paying her own chiropractic bill out of that sum.
In early June of 1981, Hannigan received a letter from Aetna, addressed to Dr. Erickson, which stated that Aetna would pay the chiropractic bill in full and conceded that it had made a serious error. Within a few days of receiving the letter Hannigan received a call from John Markuson of Aetna who requested that Hannigan send the letter back because it was mailed by mistake. Hannigan responded by saying, "You're kidding."
Sheila Lance, medical cost controller for defendant Aetna, testified that she received a telephone call from a member of the chiropractic review committee inquiring about the Ratajczak file. Lance pulled the file. When she saw the report she realized it had been filled out by O'Brien, not by the Claims Review Committee. She showed it to Markuson, her supervisor and told him what she had discovered. Lance and Markuson were both surprised at the development and Lance contacted attorney Vanderwater. Vanderwater then talked to Hannigan and they appeared before the arbitrator again. Lance wrote the letter explaining the "serious error" and offered to pay plaintiff's bill. However, Lance...
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