Opinion
No. LLI CV 99 0079598S
August 19, 2005
MEMORANDUM OF DECISION
This is a motion for summary judgment filed by the defendants, Charlotte Hungerford Hospital, Samuel Langer, M.D., Michael Kovalchik, M.D., Justin Schecter, M.D., and Robert Stine, M.D. For the reasons given, this motion must be granted.
The plaintiff, Mohinder P. Chadha, M.D., filed this action for defamation in April 1999. The essence of the original claim was that the defendants filed false reports about the plaintiff's fitness to practice medicine to the National Practitioner Data Bank (NPDB) and the Connecticut Department of Public Health (CDPH) which led to the loss of the plaintiff's medical license.
Although the original complaint contained twenty-one counts, the court (DiPentima, J.) granted motions to dismiss and to strike which reduced the counts to four, one as to each of the physician defendants. In February 2001 the defendants filed a motion for summary judgment in which they asserted that 1) federal law clothes them with qualified immunity from suit for defamation as a result of reports to the NPDB about the fitness of another physician, and 2) state law clothes them with absolute immunity from suit for defamation as a result of reports to the CDPH about the fitness of another physician, and 3) even if the defendants only have qualified immunity, the plaintiff had not shown that he would be able to prove malice at trial. Neither party filed supporting affidavits on the issue of malice. The court (Cremins, J.) found that 1) summary judgment must be granted as to the reports made to the CT Page 11738-cr NPDB because the plaintiff had failed to overcome a presumption created by federal law that any report to the NPDB met the standards for immunity, and 2) the defendant had qualified immunity, not absolute immunity, under state law with regard to the reports to the CDPH, and 3) summary judgment as to the reports to the CDPH must be denied because, unlike federal law which creates a presumption in the defendants' favor, state law as set forth in Practice Book requires the defendants to support their motion with affidavits or other documentation. Judge Cremins' memorandum of decision provides, in part: "The problem is that the defendant [sic] has not submitted any documents supporting their position as required by Practice Book § 17-45 et seq. . . . While the defendants are correct in claiming that the plaintiff failed to present proof of actual malice, they have not met their burden under the Practice Book on a motion for summary judgment. They have failed to offer any proof to counter the allegations of malice against Doctors Langer, Kovalchik and Schecter."
Although the pleading is unclear, it appears that the defendant, Charlotte Hungerford Hospital, is sued under the fourth count under a respondeat superior theory.
Judge Cremins' memorandum of decision provides: "A professional review action is protected from private damage claims stemming from such action provided it is taken: (1) in the reasonable belief that the action was in furtherance of quality health care, (2) after reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirements of paragraph (3)."
The defendants appealed from the trial court's denial of summary judgment as to reports to the CDPH. In Chadha v. Charlotte Hungerford Hospital et al., 77 Conn.App. 104 (2003) the Appellate Court affirmed the trial court and found that C.G.S. §§ 19a-17b and 19a-20 provide the defendants with qualified immunity, not absolute immunity, which can only be overcome by proof of malice. With respect to defendants' alternative claim that the plaintiff had not submitted any evidence of actual malice, the Appellate Court found that the trial court's denial of the defendants' motion on this basis was not an appealable issue. Id. 121-22. In Chadha v. Charlotte Hungerford Hospital et al., 272 Conn. 776 (2005) the Supreme Court affirmed the Appellate Court.
Following the Supreme Court's decision, the case was assigned for trial. Prior to the trial the defendants moved for permission to file a new motion for summary judgment. Permission was granted on July 8, 2005. The parties have filed briefs and presented oral argument on August 15, 2005.
The plaintiff argues that res judicata prevents the CT Page 11738-cs defendants from being given this opportunity to submit a second motion for summary judgment. This argument must be rejected. Res judicata does not apply in this circumstance. The original decision was not based upon the merits of the issue of whether there was a genuine issue of fact as to the defendants' malice, only that they failed to submit supporting affidavits. "Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim." Mount Vernon Fire Ins. v. Morris, 90 Conn.App. 525, 535 (2005). The issue of malice was never actually litigated in a prior action.
Furthermore, the Supreme Court has held that it is within the discretion of the trial court to consider a renewed motion for summary judgment that has previously been denied where the renewed motion is supported by additional or new evidence not presented when the earlier motion was before the court. Mac's Car City, Inc. v. American National Bank, 205 Conn. 255 (1987). Here, there are good reasons to permit the defendants to proceed with the renewed motion for summary judgment supported with affidavits not submitted with the original motion. The original motion for summary judgment was submitted at a time when there was a serious issue as to the extent of the defendants' immunity. Although it would have been preferable for the defendants to have submitted affidavits in support of their alternative ground that the plaintiff could not prove malice, the defendants had a good faith argument that they were clothed with absolute immunity which would eliminate their need to submit any affidavits. That issue has now been resolved in favor of qualified immunity only. Although this is an old case and the court is normally disinclined to postpone a trial in order to hear a motion for summary judgment, the interests of judicial economy weigh heavily in favor of making an exception from normal practice. It makes sense to determine if there is an issue of material fact as to the defendants' qualified immunity. A jury trial of this case would be time-consuming and expensive for the court, citizen-jurors, and parties. All parties will benefit if the case can be resolved by summary CT Page 11738-ct judgment. The plaintiff is not prejudiced. If he does not have sufficient evidence of malice, it will be better for him to find that out now rather than after jury selection, presentation of his case in chief, and the granting of a motion for directed verdict.
Turning to the merits of the motion for summary judgment, the facts of the case are set forth in the decisions of the Appellate Court and Supreme Court and will not be repeated.
The present motion for summary judgment is supported by four affidavits, one from each individual defendant. The plaintiff has submitted his affidavit and numerous documents. The affidavits of the defendants all say essentially the same things: that the defendants acted in good faith in the context of quality assurance and peer review, did not willfully, deliberately or with malice aforethought make any false and unsubstantiated allegations about the defendant, and did not benefit economically from the opinions they expressed. The affidavit and documents submitted by the plaintiff can be read in such a way that an issue is raised about accuracy of some of the things said by the defendants about the plaintiff. Although the plaintiff's affidavit contains the unsupported claim that the charges filed against the plaintiff were in "retaliation or retribution" for the plaintiff's filing "charges against Dr. Langer, Chairman of Department of Psychiatry for falsifying the minutes of the department meeting" the plaintiff has submitted no evidence which supports this charge or raises an issue that the defendants acted with malice.
In Chadha v. Shimelman, 75 Conn.App. 819, 927 (2003), the same plaintiff sued two different doctors alleging malicious publication of false statements about him to the Department of Public Health which led to the same suspension complained of in the present case. As in the present case, the plaintiff claimed that the defendants were attempting to punish him for filing charges against Dr. Langer. Id. at 828. Dr. Shimelman allegedly examined the plaintiff and produced a false evaluation report that the plaintiff could not practice psychiatry with reasonable skill and safety as a result CT Page 11738-cu of his paranoia. This report was provided to Dr. Grey, the medical director of the physician health program of the Connecticut state medical society who submitted it to the Department of Public Health which suspended the plaintiff's license to practice medicine. As in the present case, the defendants were entitled only to qualified immunity, pursuant to C.G.S. § 19a-20, which could be overcome only by a showing of actual malice. "The [trial] court [Cremins, J.] determined that the plaintiff, in opposing the defendants' motion for summary judgment, failed to present facts sufficient to establish malice, and, therefore, the court determined that the defendants were entitled to judgment as a matter of law." Id. at 824. The Appellate Court affirmed the trial court.
In the Chadha v. Shimelman opinion, the Appellate Court first determined that in order to overcome the qualified immunity provided by § 19a-20 the plaintiff has the burden of establishing actual malice. "Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth . . . Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives." (Internal quotation marks and citations omitted.) Id. at 827. The court then turned to an examination of the evidence submitted by the parties in order to determine whether the plaintiff demonstrated a factual predicate for his contention that the defendants' actions were taken with malice. With respect to the defendant Shimelman's evaluation report of the plaintiff submitted to the Charlotte Hungerford Hospital, the court stated: "After carefully reviewing the record, we conclude that although there is some evidence supporting the plaintiff's contentions that Shimelman's evaluation was inadequate and incorrect, the evidence does not provide a factual basis by which a trier of fact could conclude that Shimelman prepared his evaluation with actual malice, that is, with knowledge that his evaluation was false or in reckless disregard of the truth. At most, the evidence supporting the plaintiff's allegations could only support a finding that CT Page 11738-cv Shimelman was negligent in his evaluation of the plaintiff. As we previously noted, however, a negligent misstatement of fact will not suffice to establish malice; the evidence must demonstrate a purposeful avoidance of the truth. There simply is no evidence in the record to support a claim that Shimelman purposefully avoided the truth or prepared his report with knowledge that it was false or in disregard of whether it was true. The court rejected the plaintiff's claim that the defendants were conspiring with the hospital to punish him for filing charges against Dr. Langer because those allegations are conclusory and do not, themselves, equate to a factual showing that the defendants' actions were taken with malice. Id. at 828. The court, therefore, properly determined that the plaintiff had failed to present a factual predicate for his contention that Shimelman acted with malice when he prepared his psychiatric evaluation of the plaintiff." Id. at 829.
With respect to the defendant Dr. Grey, the plaintiff alleged that Dr. Grey knew or should have known that Dr. Shimelman's evaluation was inadequate but he nevertheless reported Shimelman's conclusions to the Department of Health without review. The court stated: "The plaintiff has produced no evidence to support those allegations. Moreover, even if those allegations were true, they do not, in and of themselves, support a finding that Grey acted with malice when he submitted his stage two report. [F]ailure to undertake an adequate investigation is not dispositive of the issue of actual malice. The fact remains that the plaintiff has produced no evidence demonstrating that Grey made a stage two report with any improper or unjustifiable motive. The plaintiff also has not produced evidence that Grey published his report with knowledge that statements contained therein were false or reckless disregard of whether they were false. The court, therefore, properly determined that the plaintiff failed to present a factual predicate for his contention that Grey acted with malice when he submitted his stage two report."
The facts of Chadha v. Shimelman are nearly identical to those here. The plaintiff in the first count of his corrected revised complaint of June 8, 2005 alleges that CT Page 11738-cw the defendant Langer "willfully, deliberately, premeditated with malice-aforethought submitted false allegations with the Department of Public Health" and as a direct result the plaintiff lost his medical license. In the second count of the corrected revised complaint the plaintiff alleges that the defendant Kovalchik "willfully, deliberately and premeditated with malice-aforethought made false and unsubstantiated allegations of emotional problems in his affidavit" submitted to the Department of Health and as a direct result the plaintiff lost his license to practice medicine. In the third count the plaintiff alleges that the defendant Schecter reviewed the medical records of two patients treated by the plaintiff and "willfully, deliberately and premeditated malice-aforethought, submitted false allegations of malpractice/negligence/incompetent care to the Department of Health" as a result of which the plaintiff's medical license was summarily suspended. In the fourth count the plaintiff alleges that the defendant Stine, Director of In-Patient Services at Charlotte Hungerford Hospital, "wilfully, deliberately, premeditated with malice-aforethought submitted the false allegations" of the plaintiff's treatment of a particular patient to the Department of Health, as a result of which the plaintiff lost his license to practice medicine.
I have carefully reviewed the material submitted by the plaintiff in opposition to the motion for summary judgment. It fails to present the necessary factual predicate to raise a genuine issue of material fact as to whether any of the defendants acted with malice, that is, with knowledge that their statements were false or in reckless disregard of the truth. The plaintiff has focused his energies on attempting to show that some or all of the statements made to the Department of Public Health were false. Reading the plaintiff's proposed evidence in a light most favorable to the plaintiff's position, the plaintiff has been able to raise an issue of material fact as the accuracy of some of the statements and opinions of the defendants. But, the plaintiff has submitted nothing which remotely raises the issue of malice on the part of any of the defendants. On the other hand, the affidavits of the defendants are CT Page 11738-cx sufficient to meet the burden they must bear to under Practice Book §§ 17-45 and 17-46 to support a motion for summary judgment. When a nonmoving party fails to respond to a motion for summary judgment by setting forth facts showing that there is a genuine issue for trial, the court is entitled to rely upon facts alleged in the affidavit of the moving party. Carrasguillo v. Carlson, (citations omitted) 90 Conn.App. 705, 711 (2005). There is no issue as to any material fact and the defendants are entitled to judgment as a matter of law. Practice Book § 17-49.
There is some question about the proper standard of proof which the plaintiff must bear. If the plaintiff is a public figure, the plaintiff must prove malice by clear and convincing evidence. See, e.g., Jones v. New Haven Register, Inc., 46 Conn.Sup. 634 (2000) ( 26 Conn. L. Rptr. 299). If the plaintiff is a private citizen, he must prove malice by only a preponderance of the evidence. See, e.g., Miles v. Perry, 11 Conn.App. 584, 590-91 (1987). In his Objection to Defendants' Second Motion for Summary Judgment at page 9 the plaintiff states that "Clear and convincing proof is required," CT Page 11738-cy apparently conceding that he is a public figure. But, because the plaintiff has submitted no evidence of malice, the plaintiff could not meet either standard.
BY THE COURT,
Pickard, J.