                   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 WEATHERS
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 CHARLES EDWARD COWAN
                                          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 Amerson sued Inland Family Clinic LLC and Dr. Ikechukwu Okorie over an

allegedly defamatory statement Dr. Okorie made to another physician concerning Amerson’s

apparent use of illegal drugs. The Defendants moved for summary judgment, contending the

statements were privileged, but the Forrest County Circuit Court denied the motion. Inland

and Dr. Okorie petitioned this Court for interlocutory review, which we granted. After due

consideration, we reverse the decision of the circuit court and render summary judgment in

favor of Inland and Dr. Okorie.
                       FACTS AND PROCEDURAL HISTORY

¶2.    Inland is a family clinic located in Hattiesburg, Mississippi, owned and operated by

Dr. Okorie. Amerson was a patient of Dr. Okorie’s from April 2011 to March 2013.

Amerson suffers from a variety of ailments, including chronic back pain for which Dr.

Okorie prescribed opioid (narcotic) pain medications. Since opioids are notoriously addictive

and can readily be resold on the black market, Amerson was required to comply with Inland’s

“Pain Management Policy.” The policy informed Amerson that if she were to violate its

terms, Dr. Okorie “may stop prescribing [the] pain-control medications.” Specifically, it was

an express violation of the policy for Amerson to use “any illegal substances.” She was

required to submit to monthly drug screenings, performed by an outside lab, which tested for

illegal or non-prescribed drugs. Amerson signed the policy.

¶3.    In February 2013, Amerson tested positive for amphetamines and methadone—two

drugs for which she had no prescription. Dr. Okorie then informed Amerson he would no

longer prescribe her narcotics; Dr. Okorie’s notes reflect that his decision was based on

Amerson’s “prior . . . and present history of taking a non-prescribed narcotic.”1 While Dr.

Okorie offered to continue treating Amerson for her other ailments, he referred her to Dr.

Joseph Farina for treatment of her chronic back pain.




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        Dr. Okorie’s reference to Amerson’s history of abuse was in part supported by
previous instances of Amerson’s violating fellow physicians’ pain management policies.
Before seeing Dr. Okorie, Amerson received treatment from Dr. Akwasi Amponsah from
August 2008 until March 2011. Dr. Amponsah had ultimately refused to prescribe Amerson
certain medications after determining she had obtained narcotics from multiple medical
providers.

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¶4.    Amerson visited Dr. Farina in March 2013, but Dr. Farina refused to prescribe

narcotics after discovering that Amerson had already depleted her existing prescription, just

sixteen days after it had been filled. That same day, Amerson returned to Dr. Okorie seeking

narcotics, which Dr. Okorie again refused to prescribe. A week later, Amerson visited Dr.

Jeffery Morris. Dr. Morris had treated Amerson for certain ailments dating back roughly to

2010. Dr. Morris informed Amerson he would need her medical records from Dr. Okorie

before he could prescribe anything for her back pain.

¶5.    While awaiting Dr. Morris’s decision, Amerson again returned to Dr. Okorie.

Amerson submitted to another drug screening, and she again tested positive for

amphetamines and methadone.         Dr. Okorie refused to prescribe Amerson narcotic

medications a third time, and Amerson did not visit him again. Then, in early April 2013,

Amerson was informed by Dr. Morris’s office that he would not prescribe narcotic

medications based on Dr. Okorie’s statement to him that Amerson had tested positive for

“amphetamines and methamphetamines.” Dr. Morris conveyed the same to one of his nurses,

Hope West, who recorded Dr. Morris’s comments on a faxed copy of Amerson’s lab results.

West wrote that “Dr. Okorie stated he wasn’t writing her narcotics due to being positive for

amphetamines [and] methamphetamines” and “[patient] notified 4/11/13.”

¶6.    Apparently, Dr. Okorie was mistaken when he said Amerson tested positive for

methamphetamines; the correct interpretation of Amerson’s drug test report was that she had

tested positive for methadone. Methamphetamines would not have shown up separately in




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the results as they fell under the “amphetamine” heading.2 Claiming that Dr. Okorie’s

statement to Dr. Morris was false and defamatory, Amerson filed her complaint in June 2013.

The crux of her complaint alleged that Dr. Okorie had defamed her by telling others she had

used illegal drugs, and, as a result, she suffered personal and economic injuries.

¶7.    Ultimately, Inland and Dr. Okorie moved for summary judgment, arguing that Dr.

Okorie’s statement to Dr. Morris was protected by a qualified privilege. The circuit court

found genuine issues of material fact remained as to the nature and content of the statement,

and it denied summary judgment.           Inland and Dr. Okorie petitioned this Court for

interlocutory review, which we granted.

                                 STANDARD OF REVIEW

¶8.    Summary judgment is proper “if the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” M.R.C.P. 56(c). The moving party bears the initial burden of supporting the motion

for summary judgment. Id. But once the motion is properly made and supported, the non-

movant “may not rest upon the mere allegations or denials of [her] pleadings, but [her]

response . . . must set forth specific facts showing that there is a genuine issue for trial.” Id.

Thus, where the non-movant fails to “make a showing sufficient to establish the existence

of an element essential to the party’s case, and on which that party will bear the burden of




       2
         According to Dr. Okorie, the abbreviation “AMPH” in the drug test’s results
actually stands for “amphetamines.” “METD” stands for “methadone.”

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proof at trial,” summary judgment is proper. McGinty v. Grand Casinos of Miss., Inc., 245

So. 3d 444, 448 (Miss. 2018) (citations omitted).

¶9.    We review the grant or denial of summary judgment de novo. Collins v. City of

Newton, 240 So. 3d 1211, 1215 (Miss. 2018). But the evidence must be viewed in the light

most favorable to the nonmoving party. Id.

                                        DISCUSSION

¶10.   In finding that material questions of fact remained as to “the content and nature of the

alleged [defamatory] statement,” the circuit court held that Inland and Dr. Okorie failed to

show they were entitled to summary judgment because they relied upon a document, Nurse

West’s note, that was inadmissible hearsay. We conclude that this impermissibly shifted the

burden of production from Amerson to the Defendants and that any issue of fact as to the

content of the statement was not material.

¶11.   As we noted above, once the Defendants’ motion for summary judgment was properly

made and supported, Amerson could “not rest upon the mere allegations or denials of [her]

pleadings, but [her] response . . . must set forth specific facts showing that there is a genuine

issue for trial.” See M.R.C.P. 56(c). For the purposes of summary judgment, Inland and Dr.

Okorie conceded Amerson’s various allegations regarding the content of the communication

from Dr. Okorie to Dr. Morris. These allegations were laid out in the motion: Amerson said

in her deposition that Dr. Okorie had told Dr. Morris she “had illegal drugs in her system”;

she asserted in her interrogatory responses that Dr. Okorie had “told Dr. Morris I was on

illegal drugs”; and she produced in discovery Nurse West’s note about Amerson’s drug-test



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results, detailing that Dr. Okorie had told Dr. Morris that “he wasn’t writing [Amerson]

narcotics due to being positive for amphetamines [and] methamphetamines.”

¶12.   As explained below, the motion for summary judgment showed that all of these

statements, accepted as having been made, would still have been privileged. The motion thus

made a prima facie showing that no genuine issue of material fact existed regarding the

substance of the alleged statement from Dr. Okorie to Dr. Morris because, regardless of

which iteration was accepted, the communication was still privileged. See M.R.C.P. 56(c).

Put another way, whatever issues of fact remained as to the content of the statement were not

material to the motion for summary judgment. See id. The Defendants’ motion for summary

judgment should have carried the initial burden of persuading the trial court that no genuine

issue of material fact existed and that they were entitled to summary judgment. See

Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (Miss. 2013). The burden thus shifted

to Amerson to “set forth specific facts showing that there is a genuine issue for trial.” See

M.R.C.P. 56(c).

¶13.   Moreover, as this Court held in Karpinsky, summary judgment “movant[s] only bear[]

the burden of production where they would bear the burden of proof at trial.” Karpinsky,

109 So. 3d at 89. It is axiomatic that Amerson, the plaintiff, would bear the burden of

proving the content of the allegedly defamatory communication. See Armistead v. Minor,

815 So. 2d 1189, 1193 (Miss. 2002). If the note were found to be inadmissible hearsay, it

could only hurt Amerson because she, not the Defendants, had to prove what was said. But,

again, the Defendants did not challenge the admissibility of the note. Instead, they contended



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that, even if it accurately reflected what was said, the communication would still be

privileged.

¶14.   Turning to the merits of the qualified-privilege defense, Inland and Dr. Okorie

asserted that, even if the statement was made in any of the forms alleged, it was protected by

a qualified privilege that Amerson had no evidence of malice to overcome. We agree. Under

Mississippi law, an ordinary claim for defamation requires the plaintiff to prove:

       (1) a false and defamatory statement concerning the plaintiff; (2) an
       unprivileged publication to a third party; (3) fault amounting at least to
       negligence on the part of the publisher; and (4) either actionability of the
       statement irrespective of special harm or the existence of special harm caused
       by the publication.

Simmons Law Group, P.A. v. Corp. Mgmt. Inc., 42 So. 3d 511, 517 (Miss. 2010). If the

statement is privileged, the second element cannot be met unless the privilege is overcome

by a showing of malice, bad faith, or abuse. Eckman v. Cooper Tire & Rubber Co., 893 So.

2d 1049, 1052 (Miss. 2005). “Where [a] qualified privilege exists, a presumption of good

faith arises.” Barmada v. Pridjian, 989 So. 2d 359, 365 (Miss. 2008) (citing Hayden v.

Foryt, 407 So. 2d 535 (Miss. 1981)).

¶15.   Amerson relies on a single communication from Dr. Okorie to Dr. Morris where Dr.

Okorie alternatively “purposely accused [Amerson] of using illegal drugs,” “told Dr. Morris

[Amerson] was on illegal drugs,” or told Dr. Morris that “he wasn’t writing [Amerson]

narcotics due to being positive for amphetamines [and] methamphetamines.”

¶16.   This Court has outlined the qualified privilege as

       A communication made in good faith and on a subject matter in which the
       person making it has an interest, or in reference to which he has a duty, is

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       privileged if made to a person or persons having a corresponding interest or
       duty, even though it contains matter which without this privilege would be
       slanderous, provided the statement is made without malice and in good faith.

Eckman, 893 So. 2d at 1052 (quoting Smith v. White, 799 So. 2d 83, 86 (Miss. 2001)).

¶17.   The qualified privilege operates as an affirmative defense to defamation. See Whitten

v. Commercial Dispatch Pub. Co., 487 So. 2d 843, 844 (Miss. 1986); see also M.R.C.P.

8(c). On summary judgment, as at trial, the burden of proving that the qualified privilege

attached to the communication falls on the parties asserting it as a defense, Inland and Dr.

Okorie. See Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923, 927 (Miss. 2006).

That being said, the relevant circumstances surrounding the communication are not disputed.

¶18.   First, the communication was made by Dr. Okorie regarding a subject matter in which

he had an interest or in reference to which he had a duty—the treatment of his patient,

Amerson, and any related narcotic prescriptions. Second, Dr. Okorie made the statement to

Dr. Morris—a fellow physician from whom Amerson was also seeking narcotic

prescriptions. Dr. Morris therefore had a corresponding interest or duty in the medical

treatment of Amerson. Finally, nothing in the record evidences a lack of good faith by Dr.

Okorie in his statement to Dr. Morris.

¶19.   A review of our prior decisions demonstrates that this application of the qualified

privilege to physician-to-physician statements is not unusual. For example, in Hayden, this

Court addressed an allegedly defamatory statement of a supervising physician regarding the

competence of a subordinate physician. The supervising physician discussed the issue with

administrators and also at a surgical staff meeting “attended by all members of the hospital



                                             8
medical surgical staff, except for one physician on leave.” Hayden, 407 So. 2d at 537. We

concluded that “the persons present in those meetings were directly interested in the matter.”

Id. at 538. And because no evidence of malice was produced, we held that “the qualified

privilege prevailed.” Id.

¶20.   More recently, in Barmada, this Court addressed statements made by the defendant

physician, Dr. Pridjian, regarding a fellow physician’s competence. Barmada, 989 So. 2d

at 362. Dr. Pridjian made the allegedly defamatory comments to members of a hospital’s

heart team while performing surgeries, to other hospital physicians and staff, and to an

independent reviewer. Id. Relying on Hayden, this Court ultimately held that the individuals

to whom the communication was made “were directly interested in the matter; and therefore,

the qualified privilege appli[ed].” Id. (citing Hayden, 407 So. 2d. at 537-38). We also

addressed whether the privilege was overcome by a showing of malice or bad faith. Id. at

364 (citing Eckman, 893 So. 2d at 1052).3 Holding that it was not, this Court reiterated the

rule that we must “rely only on those [allegations of malice or bad faith] supported by

evidence in the record.” Barmada, 989 So. 2d at 364. As Barmada had failed to produce



       3
         Eckman required this Court to analyze communications made between two
physicians working for a utilization review company. Eckman, 893 So. 2d at 1052. The
company had been employed to review whether procedures the plaintiff physician performed
on two of Cooper Tire & Rubber Co.’s employees qualified for reimbursement. Id. at 1051.
The plaintiff surgeon alleged the utilization review company’s report contained defamatory
statements. Id. at 1052. Ultimately, this Court held that (1) the contents of the report were
protected under the qualified privilege, as the utilization-review company and the recipient,
Cooper Tire, shared a direct interest in the subject matter of the communication—whether
the surgeries qualified for employee reimbursement; and (2) no affirmative evidence of
actual malice was provided to overcome the privilege’s good-faith presumption. Id. at 1053-
54.

                                              9
affirmative evidence proving such, we affirmed the judgment and held that Pridjian’s

comments were protected by the qualified privilege. Id. at 365.

¶21.   Inland and Dr. Okorie would bolster their argument with authority from other

jurisdictions, but our caselaw more than adequately supports our decision, and further

discussion is unnecessary. The principles set forth in Hayden, Barmada, and Eckman lead

to the conclusion that physician-to-physician communications are protected under the

qualified privilege, so long as the privilege’s essential elements are satisfied. Here, those

essential elements are satisfied.

¶22.   Since the qualified privilege applied, Amerson was required to produce affirmative

evidence of “malice, bad faith, or abuse.” See Barmada, 989 So. 2d at 364. Malice, as

defined by this Court, requires “knowledge of falsity or reckless disregard as to truth or

falsity.” Eckman, 893 So. 2d at 1053. When the qualified privilege applies, the plaintiff

bears the burden of proving malice. Hayden, 407 So. 2d at 539.

¶23.   Amerson produced no evidence of malice or bad faith on the part of Dr. Okorie.

Instead, she merely argues that the results of her drug tests were incorrect and, therefore, that

Dr. Okorie’s communication to Dr. Morris relaying those results was false. But even

assuming the results were wrong, Amerson has not shown Dr. Okorie knew of the falsity or

acted in reckless disregard of the truth.           In fact, Amerson has acknowledged the

opposite—she concedes that it was “logical” for Dr. Okorie to believe the results because

they had been produced from her urine sample.

                                       CONCLUSION



                                               10
¶24.   There was no genuine issue of material fact as to the substance of Dr. Okorie’s

communication to Dr. Morris regarding Amerson’s drug-test results. By all accounts, the

communication concerned Amerson’s continuing medical treatment and satisfied all of the

elements of the qualified privilege. Since Amerson failed to produce any evidence of malice,

her defamation claims fail as a matter of law. We reverse the circuit court’s order and render

summary judgment to the Defendants.

¶25.   REVERSED AND RENDERED.

   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.




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