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Cox Media Group, LLC v. Joselevitz

Court of Appeals of Texas, Fourteenth District

March 21, 2017

COX MEDIA GROUP, LLC, Appellant
v.
DR. JOEL JOSELEVITZ, Appellee

         On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 2014-66926.

          Panel consists of Chief Justice Frost and Justices Brown and Jewell.

          OPINION

          Kevin Jewell Justice

         After a newspaper published an article in which he was featured, Dr. Joel Joselevitz sued Cox Media Group, LLC, the newspaper's ultimate parent company, for defamation. Cox Media filed a motion to dismiss under the Texas Citizens Participation Act ("TCPA"), [1] and the trial court timely conducted a hearing on the motion.[2] The trial court failed to rule on the motion, resulting in its denial by operation of law.[3] Cox Media filed this interlocutory appeal challenging the denial of the motion to dismiss and asserting a claim for attorney's fees and other costs and expenses. Because we conclude that Cox Media's motion should have been granted and that the trial court should determine attorney's fees and other costs, we reverse and remand for proceedings consistent with this opinion.

         Background

         Appellee Dr. Joel Joselevitz was a pain management doctor. In an August 2014 agreed order, the Texas Medical Board (the "Board") curtailed Joselevitz's ability to prescribe medications and permanently prohibited him from treating patients for chronic pain.

         According to Board records, Joselevitz was first disciplined in August 2011, after one of his patients died from a prescription drug overdose. Board staff charged Joselevitz with "non-therapeutically and negligently" prescribing "a dangerous combination of narcotics, which included hydrocodone, hydromorphone, loratapine, soma and diazepam, to this patient that resulted in her death." The Board found that Joselevitz's patient died in 2010 from "respiratory failure due to overdose of the medications prescribed by [Joselevitz] and possible alcohol consumption." Joselevitz agreed to enroll in and complete sixteen hours of continuing medical education and was assessed a $2, 000 fine.

         The Board filed another complaint against Joselevitz in February 2014. The complaint described Joselevitz's treatment of two patients who died while under his care. In the complaint, the Board documented numerous alleged prescribing violations for each patient. As to the first patient, the Board asserted that Joselevitz treated her from February 2011 until February 2012, when she died "from the toxic effects of clonazepam (i.e., Klonopin), alprazolam (i.e., Xanax), diazepam, hydromorphone (i.e., Dilaudid), oxycodone, and promethazine (i.e., Phenergan)." According to the Board, Joselevitz prescribed three of these medications-Dilaudid, Klonopin, and Phenergan-over the course of his treatment. The Board further asserted that: (1) Joselevitz had been advised that this patient was receiving Xanax and other medications from other sources; (2) Joselevitz's treatment was not supported by the records; (3) Joselevitz failed to document his treatment rationale; (4) urine drug screenings indicated that this patient was taking medications that Joselevitz had not prescribed; and (5) Joselevitz failed to address the patient's aberrant drug-taking behaviors/risk factors. The Board asserted that this patient's drug overdose was "attributed to some of the medications prescribed" by Joselevitz.

         Joselevitz treated the second patient mentioned in the February 2014 complaint from January 2006 to January 2011. According to the Board, over this five-year period, Joselevitz repeatedly prescribed the patient Norco, Soma, and Xanax (among other medications), without a documented treatment rationale or any record support. The Board noted that this patient was admitted to an emergency room in February 2008, after falling; the medical records from the visit indicated that the patient had signs of a medication overdose. Joselevitz addressed neither the patient's hospitalization nor her overdose during the patient's follow-up visit in May 2008. The Board charged that this patient's pain reports frequently were inconsistent and that "aberrant drug-taking behaviors/risk factors were not addressed." According to the complaint, Joselevitz last saw this patient on January 5, 2011, when he prescribed Norco, Xanax, Soma, and morphine sulfate. She died only three days later "from the combined toxic effects of morphine, hydrocodone (i.e., Norco), alprazolam (i.e., Xanax), and carisprodol (i.e., Soma)." The Board stated that Joselevitz "had prescribed this drug combination to the patient."

         Ultimately, the Board and Joselevitz settled the February 2014 complaint by entering into the August 2014 agreed order, mentioned above, which curtailed Joselevitz's prescribing privileges and permanently prohibited him from treating chronic-pain patients. In the August 2014 agreed order, the Board found that:

• Board staff conducted an audit of [Joselevitz]'s Houston clinic for the period of August 1, 2013, through August 30, 2013. During this 30-day time period audited, 449 patients were seen, and 98.2% of these patients were given prescriptions for a controlled substance (an opioid, carisoprodol, benzodiazepine, or barbiturate) to treat a pain condition.
• [Joselevitz] obtained inadequate histories, performed insufficient physical examinations, and failed to meet the standard of care for these patients.
• [Joselevitz] non-therapeutically prescribed controlled substances and continued to prescribe controlled substances as long-term treatment and without adequately documenting and justifying changes in mediation and/or indications of therapeutic benefits.
• [Joselevitz] failed to properly monitor these patients for aberrant drug-taking behavior and/or failed to properly respond to indications of aberrant drug use.
• [Joselevitz]'s medical records for these chronic pain patients were inadequate. . . .
• The panel that restricted [Joselevitz]'s license, while finding multiple violations of the [Medical Practice] Act, did not find [Joselevitz] to be operating a pill mill.

         Neither of the patients described in the February 2014 Board complaint are mentioned in the August 2014 agreed order, although the complaint is part of the Board's public records.

         During this time period, and separate from Board proceedings, Joselevitz was twice sued for wrongful death. First, the family of Joanne Tilley sued Joselevitz in March 2012.[4] In the petition, the Tilley family alleged that Joselevitz "prescribed a series of unnecessary and dangerous pain medications to [Tilley] without any medical evaluation as to the cause of her pain." The family alleged that Joselevitz's care fell below the standard of care because he failed to adequately monitor, evaluate, and treat Tilley. The family claimed Joselevitz prescribed "unnecessary and dangerous prescription drugs."

         Carol Roane, the mother of Joselevitz's patient Nicole Willens, also sued Joselevitz for wrongful death.[5] Roane alleged that from February 2011 through February 2012, Joselevitz "prescribed a series of unnecessary and dangerous prescription pain medications" to Willens, "without any medical evaluation . . . or any regard for the warning signs for drug abuse" that Willens displayed. Among the warning signs were notes in Willens's medical records-dating to Joselevitz's initial treatment-indicating that Willens "had a known/suspected opiate dependency" and was "manipulative, attempting to direct care and requesting Dilaudid (a narcotic pain medication)." Roane asserted that the prescribed medications included morphine, Dilaudid, and Fentanyl. According to the suit, Joselevitz ignored warning signs of Willens's "aberrant or addictive behavior, " which was evident in her questionnaire responses and in blood and urine test results. Roane asserted that Willens ultimately "died from the toxic effects of these medications, " and that her death "was a direct and proximate cause" of Joselevitz's negligence, which included "failing to adequately monitor, evaluate, and treat Nicole Willens by prescribing unnecessary and dangerous drugs."

         In late December 2014, the Austin American-Statesmen newspaper published a lengthy article-both online and in its print edition-titled, "Texas doctors rarely charged in prescription drug epidemic." The article featured Joselevitz prominently. This article opens as follows:

Many Texas doctors who violate prescription drug laws have little to fear from prosecutors, even when their patients die of an overdose.
Despite a 2010 law to crack down on illegal prescribing, criminal charges were filed against fewer than a third of the 83 doctors punished by the Texas Medical Board in the past three years for drug law violations involving two or more patients, an American-Statesman investigation has found.
Some doctors with a history of prescribing violations ultimately give up their license to avoid further scrutiny and freely move on or retire. Still others remain in practice.
Take, for example, Dr. Joel Joselevitz of Houston, who had three patients die of an overdose between 2010 and 2012, according to the medical board.

         The article discusses Board proceedings involving Joselevitz, and two other doctors, including disciplinary orders and a Board complaint filed against Joselevitz. For example, the article highlights some of the Board's findings, including that Joselevitz "failed to adequately justify a medical need for the drugs, failed to follow standards of care[, ] and failed to monitor patients for drug abuse." The article notes that the Board "forbade Joselevitz to treat patients for chronic pain or prescribe controlled substances."

         Family members of Joselevitz's former patients also provided input for the article: "The Statesman reached two of the three families who lost loved ones to overdoses. They said they were stunned that Joselevitz did not lose his license - or worse." The article quotes Carol Roane as opining that Joselevitz "slowly killed" Willens "with his prescription pad." According to the article, Roane described the Board's actions in restricting Joselevitz's medical license as a "pinkie slap." The article also quoted Mark Tilley, whose wife, Joanne, died of a prescription drug overdose while under Joselevitz's care, as stating, "The only difference between this guy [Joselevitz] and a dealer on the street is, he's got a license, and he's protected by insurance."

         The article then shifts focus to generally perceived problems with criminal prosecution of physicians. Joselevitz is not mentioned in the next several sections, which discuss two other pain doctors who came under Board scrutiny, problems with "pill mills, " and a "simple fix" to the problem of "doctor shopping." But the article circles back to Joselevitz later in a section entitled, "Too late for Nikki." This section begins:

In June 2011, Joselevitz ranked No. 1 in Texas for his prescribing of hydrocodone to Medicare patients, according to Prescriber Checkup by ProPublica, a nonprofit investigative news site. Those patients received an average of 23 prescriptions, compared with an average of 10 by his peers. Also, 97 percent of his patients filled at least one prescription for a narcotic painkiller, compared with 82 percent of his peers' patients, the site says.

         After discussing Joselevitz's treatment of Joanne Tilley and the Board's actions, the article quotes from the Board's complaint against Joselevitz regarding his care of Nicole Willens:

The board alleged in a complaint in February that despite Joselevitz's testing that showed Willens (identified as Patient 1) to be at "high risk of using controlled substances aberrantly" and tests that showed she used drugs he did not prescribe, his treatment "did ...

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