Opinion
Civil Action CV-15-504
12-21-2017
PAMELA G. ARGEREOW, Plaintiff v. VERNE M. WEISBERG, M.D. and MERCY HOSPITAL, Defendants.
ORDER ON DEFENDANT MERCY HOSPITAL'S MOTION TO DISMISS SECOND AMENDED COMPLAINT
Lance E. Walker, Justice.
Before the Court is Defendant Mercy Hospital's ("Mercy") motion to dismiss Plaintiffs second amended complaint pursuant to Maine Rule of Civil Procedure 12(b)(6). A hearing was held on this motion on September 6, 2017. For the following reasons, Mercy's motion is granted.
I. Background
The facts relevant to this motion are largely contained in the Court's order on Dr. Weisberg's motion to dismiss Plaintiffs first amended complaint. See Argereow v. Weisberg, 2016 Me. Super. LEXIS 96 (May 10, 2016). Since the issuance of the Court's May 10, 2016 order, Plaintiff has filed a second amended complaint which, inter alia, adds Mercy as a defendant. Specifically, Plaintiff adds Mercy to the existing claims against Dr. Weisberg for intentional infliction of emotional distress and violation of the Maine Whistleblower Protection Act, and Plaintiff alleges a cause of action against Mercy entitled "Maine Health Security Act Request for Access to Professional Competence Review Records and for Abuse of Any Privilege." (Second Am. Compl. Count II, Count VI, Count VII.)
II. Standard of Review
The court grants a dismissal when the complaint fails "to state a claim upon which relief can be granted." M.R. Civ. P. 12(b)(6). A motion to dismiss for failure to state a claim tests the legal sufficiency of a complaint. State v. Weinschenk, 2005 ME 28, ¶ 10, 868 A.2d 200. The sufficiency of a complaint is a question of law. Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. On a motion to dismiss for failure to state a claim, the facts are not adjudicated. Marshall v. Town of Dexter, 2015 ME 135, ¶ 2, 125 A.3d 1141. The court reviews the material allegations in the complaint in the light most favorable to the plaintiff to determine whether the plaintiff would be entitled to relief pursuant to some legal theory. Bean, 2008 ME 18, ¶ 7, 939 A.2d 676. Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that the plaintiff might prove in support of his or her claim. Id.
III. Discussion
A. Statutory immunity
Mercy first argues that it has immunity from civil liability under 24 M.R.S. § 2511. That statute states:
Any person acting without malice, any physician, podiatrist, health care provider, health care entity or professional society, any member of a professional competence committee or professional review committee, any board or appropriate authority and any entity required to report under this chapter are immune from civil liability:
1. Reporting. For making any report or other information available to any board, appropriate authority, professional competence committee or professional review committee pursuant to law;
2. Assisting in preparation. For assisting in the origination, investigation or preparation of the report or information described in subsection 1; or
3. Assisting in duties. For assisting the board, authority or committee in carrying out any of its duties or functions provided by law.24 M.R.S. § 2511. Mercy contends subsections 2 and 3 grant it immunity for processing any information it may have received from Dr. Weisberg during the credentialing process. As Mercy is indisputably a health care entity, it is eligible for immunity as a matter of law for any action described by § 2511. See Strong v. Brakeley, 2016 ME 60, ¶ 6, l37A.3d 1007.
The Court has reservations regarding § 251 l's applicability to Mercy in this case. In Strong v. Brakeley, the Law Court rejected an argument that § 2511 (3)'s "assisting" provision only applies when a physician is a member of the board, authority, or committee. Strong, 2016 ME 60, ¶ 11, 137 A.3d 1007. The Court reasoned "[t]he statute is intended to protect the acts of the person providing assistance; Strong, by focusing on the acts of board, authority, or committee members themselves, twists subsection 3 to instead protect the acts of the committee to whom the assistance is given." Id. The Court further noted "Strong's reading of section 2511 ... would limit its application to only a select few, and would discourage the type of reporting that section 2511 was instead meant to encourage." Id. ¶ 14. Although the Court does not expressly state that the statute does not provide immunity for the party "to whom the assistance is given, " the Court's analysis contemplates that § 2511(3) requires both a person providing assistance and a party who is the recipient of the assistance, and the Court at least implies the statute is intended to protect only the person providing assistance, not the recipient of the assistance. In this case, Dr. Weisberg was the provider of the assistance, and Mercy was the recipient of the assistance. Thus, under the interpretation of § 2511(3) in Strong, Mercy is arguably not granted immunity for receiving assistance from Dr. Weisberg.
Regarding § 2511(2), it is not clear that Mercy's participation clearly fits within this subsection either. This subsection is entitled "Assisting in preparation" and provides immunity "[f]or assisting in the origination, investigation or preparation of the report or information described in subsection 1." Although the Law Court has not yet provided an interpretation of this subsection, one reasonable interpretation would be that this subsection is intended to prevent the reporting party's conduct that occurs before the report is made to the recipient of the report.
In this case, Dr. Weisberg - the reporting party - "originat[ed]" and "prepar[ed]" the report prior to making the report to Mercy. While Mercy argues it assisted in the "investigation" of the report, it is arguable that an investigation conducted by a recipient after receiving a report is not the type of "investigation" contemplated by subsection 2. Rather, given that subsection 2 is entitled "Assisting in preparation" and that "origination" and "preparation" of a report are activities that will always occur before a report is made, the Legislature may have intended that the "investigation" provided immunity by this subsection likewise refers only to an investigation conducted by the person making the report prior to the time the report is made. Under that interpretation, subsection 2 does not provide immunity to Mercy.
Having determined that Mercy is not unquestionably entitled to immunity, the Court will consider Mercy's alternative arguments as to why Plaintiffs claims against Mercy should be dismissed.
B. Intentional infliction of emotional distress
To state a claim for intention infliction of emotional distress, a plaintiff must allege:
1. the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from [the defendant's] conduct;
2. the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community;
3. the actions of the defendant caused the plaintiffs emotional distress; and
4. the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.Lyman v. Huber, 2010 ME 139, ¶ 16, 10 A.3d 707. It is for the court to decide, as a matter of law, whether the conduct alleged may reasonably be regarded as so extreme and outrageous to permit recovery. Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 16, 711 A.2d 842.
The "extreme and outrageous" conduct Mercy is alleged to have committed is "processing false information." (Second Am. Compl. ¶ 69.) Plaintiff has not alleged Mercy knew the information it received from Dr. Weisberg was false. As such, the only reasonable inference to be drawn from Plaintiffs complaint is that Mercy received negative information from Dr. Weisberg and, as a result, warned Plaintiff that she would be denied credentialing if she did not withdraw her application. (Id. ¶¶ 37, 44, 46.) Mercy even provided Plaintiff the courtesy of recommending she withdraw her application so that the denial of her credentialing would not be reported to the Maine State Board of Nursing. (Id. ¶ 37.) As noted in Mercy's motion to dismiss, deciding not to extend credentials to a prospective employee based on negative information received from a former employer is not "extreme or outrageous;" to the contrary, it is behavior that would be expected of a prospective employer who has received negative information about a prospective employee. (See Mot. Dismiss 9-10.) As a matter of law, Mercy's conduct as alleged in Plaintiffs complaint was not "so extreme and outrageous as to exceed all possible bounds of decency." Therefore, this count must be dismissed.
C. Maine Whistleblower Protection Act
The Maine Whistleblower Protection Act (WPA) states, in relevant part: "No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because ... [t]he employee, is requested to participate in an investigation, hearing or inquiry held by that public body, or in a court action...." 26 M.R.S. § 833(C). Mercy argues this statute is inapplicable because Mercy was never Plaintiffs employer. Plaintiff admits in her second amended complaint that "Mercy did not conclude the hiring process...." (Second Am. Compl. ¶ 97.) The Law Court has stated that the WPA only applies to "then existing employment." DiCentes v. Michaud, 1998 ME 227, ¶ 18, 719 A.2d 509. As a matter of law, Mercy was not Plaintiffs employer for the purposes of the WPA, and therefore Plaintiff may not maintain an action against Mercy under the WPA.
D. Maine Health Security Act request for access to professional competence review records
Plaintiffs complaint demands access to all of Mercy's competence review records pertaining to Plaintiff pursuant to 24 M.R.S. § 2510-B(2). (Second Am. Compl. ¶¶ 103-104.) In its February 8, 2017, the Court determined Plaintiff is not entitled to these records under 24 M.R.S. § 2510-A. Argereow v. Weisberg, CUMSC-CV-15-504 (Me. Super. Ct., Cumberland Cry., Feb. 8, 2017). Plaintiffs attempt to now sidestep that order is unavailing as the plain language of § 2510-B(2) is inapplicable to Plaintiff. Section 2510-B(2) provides that professional competence review records may be furnished to "the physician who is the subject of the professional competence review activity...." Plaintiff is a nurse, not a physician, and therefore, even if this section creates a viable cause of action, it provides no recourse to Plaintiff. As a matter of law, Mercy has no duty to provide these records to Plaintiff. As such, this count must be dismissed for failure to state a claim.
Under 24 M.R.S. § 2502(3), "physician" is defined as "any natural person authorized by law to practice medicine, osteopathic medicine or veterinary medicine within this State."
IV. Conclusion
For the foregoing reasons, Defendant Mercy Hospital's motion to dismiss second amended complaint is GRANTED. Counts II, VI, and VII of Plaintiffs second amended complaint are dismissed with prejudice as to Mercy. The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).