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 VERNE M. WEISBERG, M.D.'S MOTION TO DISMISS SECOND AMENDED COMPLAINT
LANCE E. WALKER, JUSTICE.
Before the Court is Defendant Verne M. Weisberg, M.D.'s ("Dr. Weisberg") 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, Dr. Weisberg'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 Hospital ("Mercy") as a defendant and alleges that Dr. Weisberg or someone acting on his behalf abused any conditional privilege afforded by 24 M.R.S. § 2511 by contacting Mercy to comment on Plaintiffs professional background, thereby discouraging Mercy from hiring Plaintiff. (Second Am. Compl. ¶¶ 4, 44-46.)
Following the Court's order on the original motion to dismiss, the remaining claims against Dr. Weisberg include interference with prospective economic advantage, intentional infliction of emotional distress, and violation of the Maine Whistleblower Protection Act. Dr. Weisberg contends these claims must be dismissed because the Maine Health Security Act, 24 M.R.S. § 2511, grants him absolute immunity from civil liability. (Mot. Dismiss 2.) He further asserts that the previously-dismissed claims for defamation, negligent infliction of emotional distress, and slander per se are likewise barred by § 2511 and, therefore, the entirety of Plaintiffs second amended complaint should be dismissed with prejudice. (Id. n.2.)
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
The Maine Health Security Act provides:
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. Dr. Weisberg contends subsection 1 and 3 grant him immunity for any comments he may have made to Mercy. As there is no dispute that Dr. Weisberg is a medical doctor (see Second Am. Compl. ¶ 2) and therefore a physician, he is eligible for immunity as a matter of law for any action described by § 2511. See Strong v. Brakeley, 2016 ME 60, ¶ 6, 137 A.3d 1007.
Dr. Weisberg argues any comments he may have made to Mercy qualify as a "report or other information" or as "assisting" Mercy to carry out its credentialing functions. Thus, he reasons, these activities would fit squarely within subsections 1 and 3 if Mercy qualifies as a "board, appropriate authority, professional competence review committee or professional review committee." Dr. Weisberg argues Mercy is a "professional competence committee" under 24 M.R.S. § 2502(4), which includes a health care entity "engaging in professional competence review activity." 24 M.R.S. § 2502(4)(A).
Plaintiff generally argues in opposition to Dr. Weisberg's motion that his reading of § 2511 is overly broad and that a bad faith exception should be read into the statute. However, the Court finds this argument is foreclosed by Strong v. Brakeley. That case clearly holds that § 2511 has no requirement that physicians must act without malice to be entitled to immunity. Strong, 2016 ME 60, ¶ 12, 137 A.3d 1007. Even Lalonde v. Cent. Me. Med. Ctr., which Plaintiff attempts to cite in support of her position, reaffirms that § 2511 grants "immunity from any suit claiming harm by defamation, slander, breach of contract, interference with an expectancy, or any other cause of action seeking damages or other remedies based on [a] report" to a qualified recipient. Lalonde v. Cent. Me. Med. Ctr., 2017 ME 22, ¶ 13, 155 A.3d 426. Through these cases, the Law Court has repeatedly interpreted § 2511 as providing a broad grant of immunity for conduct that may otherwise be tortious. Because § 2511 protects even malicious behavior, the alleged retaliatory, false, and intimidating nature of Dr. Weisberg's comments is irrelevant. (See Second Am. Compl. ¶¶ 37, 45-46.)
Under a plain language reading of § 2511, accepting as true Plaintiffs allegations that Dr. Weisberg made malicious comments to Mercy which caused Mercy to advise Plaintiff to either withdraw her application or risk disqualification for credentialing (Second Am. Compl. ¶¶ 37, 44-46), the Court finds that Dr. Weisberg is entitled to immunity. Dr. Weisberg is indisputably a physician. Because Plaintiffs complaint admits that her application was compromised at the credentialing phase (see Second Am. Compl. ¶¶ 37, 42-46), the only inference that can be drawn from her allegations is that Dr. Weisberg's comments were made in the context of Mercy's credentialing process. As such, Dr. Weisberg's comments qualify as, at a minimum, "information" provided to Mercy (satisfying § 2511(1)), and they were made for the purposes of "assisting" Mercy to carry out its credentialing function (satisfying § 2511(3)). Finally, because it was a health care entity engaging in professional competence review activity (e.g., credentialing) when it received Dr. Weisberg's comments, Mercy is a qualifying professional competence committee pursuant to 24 M.R.S. § 2502(4)(A). As such, Dr. Weisberg's comments, whatever they may have been, fall within both subsections 1 and 3 of § 2511, entitling him to immunity for any civil liability incurred in connection with his comments.
The Court declines to comment on Plaintiffs assertion that, under Dr. Weisberg's interpretation, "there is no communication that a physician could make to a hospital ... which is not shielded by" § 2511. (Pl.'s Opp'n to Mot. Dismiss 3.) The Court only finds such immunity is sufficiently broad to cover any comments that may have been made by Dr. Weisberg to Mercy during its credentialing process as alleged in Plaintiffs second amended complaint.
Furthermore, each of Plaintiff s claims against Dr. Weisberg is founded on the comments allegedly made by Dr. Weisberg to Mercy. This is distinguishable from Lalonde, in which the Law Court noted the trial court had properly differentiated the plaintiffs claim for contractual or statutory indemnity from a tort claim that would be barred by § 2511 immunity. See Lalonde, 2017 ME 22, ¶ 9, 155 A.3d 426 ("[T]he court concluded ... the allegation that CMMC reported Lalonde's termination to the Board, thus triggering the Board's actions against Lalonde, was not an essential fact of his indemnification claim.").
Dr. Weisberg's provision of information to Mercy is an essential fact of each of Plaintiffs claims against Dr. Weisberg. His comments constitute the alleged malicious interference in Plaintiffs interference with prospective economic advantage claim. (See Second Am. Compl. ¶¶ 61-66.) His "actions in communicating ... false and misleading information" is the basis of Plaintiffs claim for intentional infliction of emotional distress. (See Second Am. Compl. ¶¶ 68-73.) His "statements referenced in Paragraphs 44 through 52" of Plaintiffs complaint also form the foundation of her whistleblower claim. (See Second Am. Compl. ¶¶ 93-99.) Lalonde makes clear that the previously-dismissed claims for defamation, slander, and negligent infliction of emotional distress based on defamation and slander, would also be barred by § 2511. Lalonde, 2017 ME 22, ¶ 13, 155 A.3d 426. Because the Court finds Dr. Weisberg is immune from any civil liability incurred by making the alleged comments, each count against Dr. Weisberg in Plaintiffs second amended complaint must be dismissed.
IV. Conclusion
For the foregoing reasons, Defendant Verne M. Weisberg, M.D.'s motion to dismiss second amended complaint is GRANTED. Counts I through VI of Plaintiffs second amended complaint are dismissed with prejudice as to Dr. Weisberg.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).