IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-IA-01174-SCT INLAND FAMILY

PRACTICE CENTER, LLC, AND IKECHUKWU OKORIE, M.D.

v. SALLIE M. AMERSON

DATE OF JUDGMENT: 08/01/2017 TRIAL JUDGE: HON. JON MARK W EATHERS COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: CHARLES EDW ARD COW AN R. MARK HODGES ATTORNEY FOR APPELLEE: SALLIE M. AMERSON (PRO SE) NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND RENDERED - 11/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ. ISHEE, JUSTICE, FOR THE COURT: ¶1. Sallie Am erson sued Inland Fam i ly Clinic LLC and Dr. Ikechukwu Okori e o v e r a n allegedly def

am atory statem ent Dr. Okorie m ade to another p h y sician c oncerning Am erson’s apparent use of illegal drugs. T he Def endants m oved f

or sum m ary j udgm ent, contending the

statem ents were privileged, but the Forrest County Circuit Court denied the m otion. Inland and Dr. O korie p etitioned this Court f or interlocutory review, which we granted. Af ter due consideration, we reverse t he d e cision of the circuit court and r ender s u m m ary judgm ent in f avor of Inland and Dr. Okorie.FACTS AND PROCEDURAL HISTORY

¶2. Inland is a f

am ily clinic located in Hattiesburg, Mississippi, owned and operated by
Dr. Okorie. Am e rson was a pati e n t o f D r. Okorie’s f rom April 2011 to March 2013.
Am erson suf

f ers f rom a variet y o f a i l ments, including chronic back pain f or w hich Dr. O k o r i e p r e scribed opioid ( narcotic) pain m edications. Since opioids a r e n o t o r i o u s l y a d d i c t i v e and can readily be resold on the black m arket, Am erson was required to com ply with Inland’s

“ P a i n M a n a g em ent Policy .” T he policy inf orm ed Am e rson that i f she were to violate it s
term s, Dr. Okorie “m ay stop p rescribing [ the] pain-control m edications.” Specif ically , it was

an ex p ress v iolation of t he policy f o r A m erson to u se “ any i llegal s ubstances.” She was required t o subm it to m o nthly d rug screenings, perf

orm ed by a n outside lab, which tested f or illegal or non-prescribed drugs. Am erson signed the policy

. ¶3. In February

2013, Am erson tested positive f or am phetam ines and m ethadone—two drugs f or which s he had no prescription. D r. Okorie t hen inf orm ed A m erson he would no l o n g e r p rescribe her narcotics; Dr. Okorie’s notes ref lect that his decision w as based on Am erson’s “prior . . . and present history of taking a non-prescribed narcotic.” 1 W hile Dr. Okorie of f e r e d t o c o n t i nue treating Am e rson f or her other a i lm ents, he ref erred h er to Dr. Joseph Farina f

or treatm e nt of

her chronic back pain.

1 D r . O k o r i e ’ s r ef

eren ce to A m erso n ’s h isto ry o f ab u se w as in p art su p p o rted b y p rev io u s in stan ces o f A m erso n ’ s v io latin g f ello w p h y sician s’ p ain m an ag em en t p o licies. B e f o re seein g D r. O k o r ie, A m ers o n receiv ed treatm en t f ro m D r. A k w asi A m

p o n sah f ro m A u g u st 2 0 0 8 u n til M a rch 2 0 1 1

. D r. A m p o n sah h ad u ltim ately ref

u sed to p r escrib e A m erso n certain m ed icatio n s af

t er d e term in in g sh e h a d o b tain e d n arco tics f ro m m u ltip le m ed ical p ro v id ers. 2¶4. A m e r s o n v i s i t e d D r . F arina in March 2013, but Dr. Farina ref used to pre s c r i b e narcotics af

t er discovering that A m erson h ad already depleted her existing p rescription, just sixteen d ay s af

ter it h a d been f

illed. That sam e day , Am erson returned to Dr. Okorie seeking narcotics, which Dr. Okorie again ref used to prescribe. A week later, Am erson visited Dr. Jef f ery Morris. D r. Morris had treated A m erson f or certain a ilm e n ts dating back roughly to 2010. Dr. Morris inf

o r m ed Am erson h e would need her m e dical re cords f rom Dr. Okorie bef ore he could prescribe any t hing f or her back pain. ¶5. W h ile a waiting D r. M o r r i s ’ s d e c i s i o n , A me r s o n a g ain returned to D r. Okorie.
A m e r s o n subm itted to a nother drug screening, and s he again tested positive f o r

am phetam ines and m ethadone. Dr. Okorie ref u sed to prescribe Am er s o n n a r c otic

m edications a third tim e, and Am erson did not visit h im again. Then, in early Apri l 2013,
Am erson was i nf

orm ed b y Dr. Morris’s of f i c e t hat h e would not prescribe narcotic

m edications based on Dr. O k o r ie’s statem ent to him that A m erson h ad tested positive f or “am phetam i nes and m etham

phetam ines.” D r . Morris convey e d t h e sam e to one of h is nurses, Hope W est, who recorded D r. Morris’s c om m ents on a f axed copy of Am e rson’s l ab results.
W e st wrote that “Dr. Okorie stated he wasn’t writing her narcotics due to being positive f or

am phetam ines [ and] m etham phetam i nes” and “[ patient] notif ied 4/11/13.” ¶6. Apparently , Dr. Okorie was m ist a k e n w h e n h e s a i d Am erson tested p ositive f or

m etham phetam ines; the correct i nterpretation of A m erson’s d rug test report was that she had tested positive f

or m ethadone. Metham

phetam ines would not have shown up separately in

3the results a s t h e y f e ll under the “am

p hetam ine” heading. 2 Claim ing that Dr. Okorie’s

statem ent to Dr. Morris was f alse and def

am atory , Am erson f

iled her c o m

plaint in J une 2013. The crux of her com

plaint alleged that Dr. Okorie had d ef am ed her by telling o thers she had used illegal drugs, and, as a result, she suf f e red personal and econom ic injuries. ¶7. Ultim ately , Inland and Dr. Okorie m oved f o r sum m ary judgm e nt, arg u i n g t h a t Dr. Okorie’s statem ent to D r. M orris wa s p r o t e c t e d by a qualif ied privilege. The circuit court f ound genuine issues of m a terial f act rem a ined as to the nature and content o f t he statem ent, and it denied sum m ary judgm ent. Inland a nd Dr. Okorie p e titioned this Court f or interlocutory

review, which we granted.

STANDARD OF REVIEW ¶8. Sum m ary judgm ent is proper “if the p l e a d ings, depositions, answers to interrogatories and a dm issions on f

ile, together with the af

f idavits, if any , show that t here is no genuine issue as to any m aterial f

act and that the m oving party is entitled to a judgm ent as a m atter of law.” M .R.C.P. 56(c). The m oving party b ears the initial burden of supporting the m otion f or sum m ary

judgm ent. Id

. But once the m otion is properly m a de and supported, the nonm ovant “ may not r est upon the m ere allegations or denials of [ her] pleadings, but [ her]
response . . . m

ust set f orth specif

i c f acts showing that there is a g enuine issue f or trial.” Id

. Thus, where the non-m ovant f ails to “m a ke a sh o w i ng suf f i cient to establish the existence of an elem ent essenti a l t o the party ’s case, and on which that p arty will bear the burden of

2 A cco rd in g t o D r . O k o rie, th e ab b rev iatio n “A M P H ” in th e d r u g test’s resu lts actu ally stan d s f o r “am p h etam in es.” “M E T D ” stan d s f o r “m eth ad o n e.” 4proof at trial,” sum m a ry j udgm ent is proper. McGinty v. Grand Casinos of Miss., Inc. , 245 So. 3d 444, 448 (Miss. 2018) (citations om i tted). ¶9. W e review the g rant or denial o f sum m ary judgm ent de no v o . C o l l i n s v. City of
Newton , 240 S o. 3d 1211, 1215 (Miss. 2018). B ut the evidence m ust be v iewed in the light

m ost f avorable to the nonm oving party

. Id.
DISCUSSION ¶10. In f

inding that m aterial questions of f act rem ained a s to “the content and n ature of the alleged [ def

am atory ] statem ent,” the circuit court held that Inland and Dr. Okorie f ailed to show they were entitled to sum m ary judgm ent because they relied upon a docum ent, Nurse
W e st’s note, that was inadm issible hearsay

. W e conclude that this im perm issibly shif

ted the burden of production f

rom A m erson to the Def

endants and that a ny issue of f act as to the content of

the statem e nt was not m aterial. ¶11. As we noted above, once the Def endants’ m otion f

or sum m ary judgm ent was properly

m ade and supported, Am erson could “not rest upon the m e re allegations or denials of [ her] pleadings, but [ her] response . . . m ust set f orth specif

ic f acts showing that there is a genuine issue f or trial.” S

ee M.R.C.P. 56(c). For t he purposes of sum m ary judgm e nt, Inland and Dr. Okorie conceded A m erson’s various allegations regarding the content of t he c o m m unication f rom Dr. O korie to Dr. Morris. These allegations w ere laid out i n the m otion: Am erson said in her deposition that Dr. Okorie had told Dr. Morris she “had illegal drugs in her sy stem ”; she a sserted in her inte r r ogatory responses that Dr. Okorie h ad “ told Dr. Morris I was on illegal d rugs”; and she p roduced in discovery Nurse W e st’s note about Am erson’s drug-test

5results, d etailing that D r. Okorie had told Dr. Morris that “he wasn’t w r iting [ Am erson]

narcotics due to being positive f or am phetam ines [ and] m etham phetam ines.” ¶12. A s e x p l a i n e d below, the m otion f or sum m ary judgm ent showed that all o f t h e s e
statem ents, accepted as having been m ade, would still have been p rivileged. The m otion thus

m ade a prim a f

acie showing that no genuine issue of m aterial f a ct existed regarding the substance of the alleged statem ent f r om Dr. Okorie to Dr. Mo r r i s b e c ause, regardless of which iteration was accepted, the com m unication was still privileged. S ee M .R.C.P. 56(c).
Put another way , w hatever issues o f f act rem ained a s to the content of the statem e nt were not

m aterial t o the m otion f

or sum m a ry judgm ent. See id. The Def endants’ m otion f

or sum m ary judgm ent should h ave carried the initial burden of persuading the t rial court that n o genuine issue of m aterial f

act e xisted and that they w e r e e n titled to sum m ary judgm ent. See Karpinsky v. Am . Nat’l I ns. C o. , 109 So. 3d 84, 88 (Miss. 2013). The burden thus shif ted
to Am erson to “set f

orth specif

ic f acts showing that there is a genuine issue f o r trial.” See M.R.C.P. 56(c). ¶13. Moreover, as this Court held in Karpinsky , sum m ary judgm ent “m o vant [ s ] o n l y b e a r [ ] the burden o f production w here they would bear t h e burden of p roof at trial.” Karpinsky , 1 0 9 S o . 3 d at 89. It is axiom atic that A m e rson, the plaintif f , would bear t he burden o f proving the content of t he allegedly def am a tory com m unication. See Arm istead v. Minor , 815 So. 2d 1189, 1193 ( M i ss. 2002). If the note were f ound to be inadm issible hearsay , it could only hurt A m erson because she, n ot t he D ef endants, had to prove what was said. But, again, the Def

endants did not challenge the adm issibility of the n ote. Instead, they c ontended

6that, even if it accurately r e f l e c t ed what was said, t he com m unication w ould still be privileged. ¶14. T u r n i n g t o t h e me r i ts of the qualif i ed-privilege def

e nse, Inland and Dr. Okor i e asserted that, even if the statem ent was m ade in a ny of the f o rm s alleged, it was protected by

a q u alif ied privilege that A m erson had no evidence of m a lice to o vercom e. W e agree. Under Mississippi law, an ordinary claim f or def am a tion requires the plaintif f to prove: (1) a f alse and def

am atory s t a tem e nt concerning t he plaintif f ; (2) an unprivilege d p u b l i c ation to a third party ; ( 3) f ault am ounting at least to negligence on the p a rt of the publisher; and (4) ei t her actionability of the statem ent irrespective of special harm o r the e x istence of special h arm c aused by the publication.
Sim m ons Law Group, P.A. v. Corp. Mgm t. Inc. , 4 2 So. 3 d 511, 517 (Miss. 2 010). If the

statem ent is privileged, the second elem ent c a nnot be m e t unless the privilege is overcom e by a s howing of m alice, bad f aith, or abuse. Eckm a n v. Cooper Tire & Rubber Co. , 893 So. 2d 1049, 1 052 (Miss. 2005). “W h ere [ a] qualif ied privilege exists, a presum ption of good f aith arises.” Barm ada v. Pridjian , 989 So. 2d 359, 365 (Miss. 2008) ( c i t i n g Hayden v. Foryt , 407 So. 2d 535 (Miss. 1981)). ¶15. Am erson relies on a single com m unication f

rom Dr. O korie t o D r. Morris where Dr. Okorie a lternatively “ purposely accused [ Am e rson] o f using illegal drugs,” “told Dr. Morris [ Am erson] was on illegal drugs,” or told D r. M o r ris t hat “he wasn’t writing [ Am erson] narcotics due to being positive f or am phetam ines [ and] m etham phetam ines.” ¶16. This Court has outlined the qualif i ed privilege as
A com m unication m ade in good f aith and on a subject m att e r i n which the person m aki n g i t has an interest, or in ref e r ence to w hich he has a duty , is

7privile g e d i f m a de to a person or persons h aving a corresponding interest or

duty , even though it contains ma t ter which without this privilege would be slanderous, p rovided the statem ent is m ade without m alice and in good f aith.
Eckm an , 893 So. 2d at 1052 (quoting Sm ith v. White , 799 So. 2d 83, 86 (Miss. 2001)). ¶17. The qualif

ied privilege operates as an a f f i rm ative d ef

ense to def

am a tion. S

ee Whitten

v. C o m m ercial D ispatch Pub. Co. , 487 So. 2d 843, 844 ( Miss. 1986); see also M.R.C.P. 8(c). On s um m ary judgm e nt, as a t t r i a l , t h e burden of proving that t he qualif ied privilege attached to the com m

unication f

alls on the parties asserting it as a d ef ense, I n l a n d and Dr. Okorie. See Jenkins v. Pensacola Health Trust, I nc. , 933 S o . 2d 923, 927 ( Miss. 2006). That being said, t he relevant circum stances surrounding the c o m m unication are not disputed. ¶18. First, the com m

unication was m ade by D r. Okorie regarding a s ubject m atter in which he had an interest or in ref e rence t o w h i c h he had a duty —the treatm ent of his patient,
Am erson, and any related narcotic prescriptions. Second, Dr. Okorie m ade t he s tatem ent to
D r . Morris—a f

ellow phy sician f

r om whom Am erson was also seeking nar c o t i c prescriptions. Dr. Morris theref ore h ad a correspondin g i n t erest or duty in the m edical

treatm ent of

Am erson. Finally , nothing in the record evidences a l ack of good f aith by Dr. Okorie in his statem ent to Dr. Morris. ¶19. A re v i e w o f o u r p r i or decisions dem o nstrates that this application of the qualif ied privilege t o phy sician-to-phy s ician statem ents is not unusual. For exam ple, in Hayden , this
Court addressed an a llegedly def am atory statem ent of a supervising phy sician regarding the

com petence of a subordinate phy sician. The supervising phy sician d iscussed t he issue with adm inistrators and also at a s urgical staf f m eeting “attended by all m em b ers of the hospital

8m edical surgical staf f , e xcept f or o ne phy sician on l eave.” Hayden , 407 So. 2d at 537. W e concluded that “the persons present in those m e etings were directly i nterested in the m atter.”
Id. at 538. And because no evidence of m alice w as produced, we h e l d t h a t “ the qualif ied privilege prevailed.” Id. ¶20. More recently , in Barm ada , this Court addressed statem ents m ade by the def endant phy sician, Dr. Pridjian, regarding a f ellow p hy sician’s com

petence. Barm ada , 989 So. 2d

at 362. Dr. Pridjian m a de the allegedly def am atory com m ents t o m em b ers of a h o s p ital’s heart team w hil e p e r f

orm ing surgeries, t o o ther hospital phy s icians and staf f , a nd to an independent reviewer. Id. Rely i ng on Hayden , this C o urt ultim ately held that the individuals

to whom the com m

unication was m ade “were directly interested i n the m atter; and theref ore, the qualif ied privilege appli[ ed].” Id. (citing Hayden , 407 So. 2d. at 53 7

- 3 8 ). W e also addressed whether the p r ivilege w as overcom e by a showing of m a l ice or bad f aith. Id. at 364 (citing Eckm an , 893 So. 2d at 1052). 3 Holding that it w as not, this Court reiterated the rule that we m

u st “r e l y only on those [ allegations of m alice or bad f a ith] s upported by evidence in the record.” Barm ada , 989 So. 2d at 3 64. As B a r ma d a h ad f ailed to produce

3 E ck m a n req u ired th is C o u rt t o an aly z e c o mmu n icatio n s m a d e b etw een t w o p h y sician s w o rk in g f

o r a u tilizatio n r e v iew co m p an y . E ck m a n , 8 9 3 S o . 2 d at 1 0 5 2

. T h e c om pa ny ha d been em

p lo y ed to rev iew w h eth er p ro c ed u res th e p lain tif f p h y s i ci a n p e r for m e d o n tw o o f C o o p e r T ire & R u b b er C o .’s em p lo y ees q u a lif

ied f o r reim b u rsem en t. Id

. at 1 0 5 1

. T h e p l ain tif

f su r g eo n alleg ed th e u tilizatio n rev iew co m p an y ’s rep o r

t co n tain ed d ef

am ato ry statem en ts. Id

. at 1 0 5 2

. U ltim ately , th is C o u rt h eld th at (1 ) th e co n t en ts o f th e r ep o rt w ere p ro tected u n d er th e q u a lif i ed p riv ileg e, as th e u tilizatio n -rev iew co m p a n y an d th e r ecip ien t, C o o p er T ire, sh ared a d irect in terest in th e su b j ect m atter o f th e co m m

u n icatio n

— w h eth er th e su rg eries q u alif

ied f o r e mp l o y e e reim

b u r sem en t; a n d (2 ) n o af f irm a tiv e ev id en ce o f actu al m alice w a s p ro v i d ed to o v e r c om e t he p riv i leg e’s g o o d

- f

aith p resu m

p tio n . Id . at 1 0 5 3

- 5 4

. 9af

f irm ative evidence p roving s uch, we af f i r me d t he judgm ent a nd held that P ridjian’s

com m ents were protected by the qualif i ed privilege. I

d. at 365. ¶21. I n l a n d a n d D r . O k o r i e w ould bolster their argum ent with authority f r o m o t h e r jurisdictions, but our c aselaw m ore than adequately supports our decision, a n d f urther discussion is unnecessary . The principles set f o rth in Hayden , Barm ada , and Eckm an lead

to the conclusion that p hy sician-to-phy sician com m unications ar e protected under the qualif ied privilege , so long as the privilege’s e ssential elem ents are satisf ied. H ere, those essential elem e nts are satisf ied. ¶22. Since the qualif

ied privilege applied, Am erson was required to produce af f irm ative evidence of “m alice, bad f aith, or abuse.” See Barm ada , 9 8 9 S o. 2d a t 364. Malice, as def ined by t his Court, requires “knowledge of f alsity or reckless disregard as to truth or f alsity .” Eckm an , 893 So. 2d at 1053. W hen the qualif ied privilege applies, the plaintif f bears the burden of

proving m alice. Hayden , 407 So. 2d at 539. ¶23. Am erson p roduced no evidence o f ma l i c e o r bad f aith on t he part of D r. Okorie. Instead, she m erely argues that the results of h er drug t ests w ere incorrect and, theref ore, that
Dr. Okorie’s com m

un i c a t i o n t o Dr. Morris relay i ng those results w as f alse. But even

assum ing the results were wrong, Am erson h as not shown Dr. Okorie knew of the f alsity or acted in reckless disregard of the truth. In f act, A m e r s o n has acknowledged the opposite—she concedes that it was “lo g i c a l ” f or Dr. O korie to believe the results because they had been produced f

r o m her urine sam

p le.
CONCLUSION

1 0¶24. There was no genuine issue of m aterial f a c t a s t o t h e s u b s t a n c e of Dr. Okorie’s

com m unication to D r. Morris regarding Am e rson’s d rug-test resul t s . By all accounts, the

com m unication concerned Am e rson’s continuing m edical treatm ent and satisf ied all of the elem ents of the q

ualif ied privilege. Since Am erson f ailed to produce any e vidence of m alice, her def am ation claim s f

ail as a m atter of law. W e reverse the circuit court’s order and render

sum m ary judgm ent to the Def

endants. ¶25. REVERSED AND RENDERED. WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING , C OLEMAN, MAX W ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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