stating, under a prior version of workers’ compensation scheme that an independent physician examining workers’ compensation claimants, at the request of the commission for the purpose of reporting their medical conditions was performing an “investigative-medical fact-finding function”
How later courts described this case
- stating, under a prior version of workers’ compensation scheme that an independent physician examining workers’ compensation claimants, at the request of the commission for the purpose of reporting their medical conditions was performing an “investigative-medical fact-finding function”
- concluding that the litigation privilege shielded a physician from liability arising from his testimony in judicial proceedings but not from claims arising from the manner in which he conducted examinations
- “[i]n determining whether the prosecutor’s acts are quasi-judicial as opposed to investigative or administrative, the [federal] courts have applied a functional analysis of his activities, rather than simply stating that he is a prosecutor whose status entitles him to absolute immunity”
- “It is a well-established rule that judges, counsel, parties, and witnesses are absolutely immune from civil suits for defamatory remarks made during and relevant to judicial proceedings.”
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. The issue presented here is whether a medical specialist, who is consulted by a state agency for the purpose of rendering an expert opinion, is free from liability relating to physical examinations performed for the purpose of formulating an expert opinion. In other words, does such expert so conduct this professional activity with absolute immunity? My position now, as in the past, is that he does enjoy such absolute immunity.
Accordingly, in the case of Howard v. Weiss, M. D. (Sept. 16, 1976), Franklin App. No. 76AP-113, unreported, a libel case, I made the following comments, first, as to the nonexistence of a physician-patient relationship:
“* * * as stated by the trial court, the law of Ohio as expressed in State, ex rel. Galloway, v. Industrial Commission [(1938), 134 Ohio St. 496 ( 13 O.O. 102 )], provides that the medical examinations of claimants within the Industrial Commission do not involve the physician-patient relationship. Although this principle as brought forth in State, ex rel. Galloway was set forth in the opinion rather than the syllabus of that case, it is our view that *454 this is an acceptable expression of the applicable law on the point within Ohio.”
Specifically, as to the type or degree of privilege that would be enjoyed by the physician in these physical examinations and reports in the Industrial Commission, I stated:
“We hold that the complained of contents of the report here could not so provide an actionable claim in libel, in that we believe such to have constituted a professional medical opinion made after examination of this claimant and, as such, was absolutely privileged.
“There are certain occasions as recognized in the law where there is great enough public interest to warrant providing a wide degree of latitude in the expression of one’s opinion without the fear of rendering oneself vulnerable to civil suit. In such instances, the law, either by way of statute or case law, provides that statements made or published which would otherwise be actionable, are determined to be privileged.
<<* He *
“We have little difficulty here in concluding that the public policy of the matter would dictate the conclusion that a privilege should be extended to a report of a physician in such administrative proceeding, but the question is, of what nature should it be?
“It is rather uniformly recognized and accepted that judges, counsel, parties, and witnesses are absolutely exempt from responsibility for libel or slander for words otherwise defamatory published in the courts of judicial proceedings. See, generally, 34 Ohio Jurisprudence 2d, Libel and Slander, Section 75, at page 240; 50 American Jurisprudence 2d, Libel and Slander, Section 231, at page 743.
i i * * *
“The texts and articles on the subject note that there has been a tendency in the case law in this country to extend the absolute privilege to administrative proceedings. Such courts extend the privilege to protect the communications where the administrative officer or agency is exercising a judicial or quasi-judicial function. See 50 American Jurisprudence 2d, Libel and Slander, Section 234, at page 746. In such textual material we find that, ‘Although there is authority to the contrary, proceedings before workmen’s compensation commissions in connection with employees’ claims usually are held to be judicial or quasi-judicial so that communications are privileged.’
“We need not, for purposes of this issue, determine whether the absolute privilege would attach to all of the facets of proceedings within the Industrial Commission. We need only determine the privilege, if any, to be afforded a professional opinion as rendered by a physician to the Industrial Commission, such opinion being filed within the claim file of the employee.
“It is our view that public policy is best served by providing immunity from suit to the physician in such instances, and by so doing permit the doctor to give his professional opinion freely and without fear of civil liability. We arrive at this view by balancing the slight possibility of a physician *455 distorting his professional opinion for malicious purposes against the almost certain probability that any limitation upon nonliability of the physician will have a stifling effect upon the submission of a candid and open opinion. Thus, a qualified privilege will not serve the interest of justice as well as an absolute privilege. The interest to be protected here is similar to that of a witness at a trial.”
I conclude that the same reasoning should be applied to the cause sub judice, and would hold that a physician acting as an arm of the Industrial Commission in performing independent medical examinations of compensation claims, and rendering opinions to the commission based thereon, is both a witness and a quasi-judicial officer and, as such, enjoys absolute immunity from a civil action by a claimant alleging a reduction or denial of benefits as the result of the examination or the reporting of opinions resulting therefrom.
Accordingly, I would reverse the judgment of the court of appeals.