RACHEL STEPHANO v. MORRIS HEALTHCARE LLC, & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-503

RACHEL STEPHANO

vs.

MORRIS HEALTHCARE LLC,1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

When the COVID-19 pandemic struck, plaintiff Rachel

Stephano's mother was in hospice care at the Gardner

Rehabilitation & Nursing Center (facility) in Gardner. On April

28, 2020, Stephano was told that she should come to the facility

right away because her mother appeared to be dying. After

Stephano and other close family members went to visit the

mother, a dispute erupted about the group being at the facility

and their compliance with COVID-19 protocols. Ultimately, the

facility called the police to escort the family from the

1Also known as Gardner Operations, LLC, doing business as

Gardner Rehabilitation & Nursing Center.

2 Gardner Healthcare Management LLC.

premises. The facility then left Stephano a voicemail barring

her from entering the facility to see her mother and obtained a

"no trespass order" barring Stephano from visiting her mother.

That order was served on Stephano on April 29, 2020, at

approximately 7:07 P.M. and removed by the facility on April 30

at approximately 4:40 P.M., but Stephano thereafter was allowed

to visit her mother only while supervised. No other family

member, including her brother was allowed to accompany her.

After her mother died, Stephano filed a four-count

complaint in Superior Court against the entities that operated

the facility (collectively, Gardner). Gardner filed a motion to

dismiss all counts on various grounds. That motion was allowed

as to two of the counts, which are not before us in the current

appeal.3 Gardner filed motions for summary judgment with respect

to the two remaining claims, one for defamation, and the other

for intentional infliction of emotional distress (IIED). Before

us now is Gardner's interlocutory appeal of the denial of those

motions.4 For the reasons explained, we affirm.

3 The judge allowed Gardner's motion to dismiss with respect

to Stephano's claims alleging breach of contract and violations

of G. L. c. 93A. Final judgment dismissing those claims has not

entered. Stephano did not pursue a cross-appeal of the partial

allowance of Gardner's motion to dismiss in the current

interlocutory appeal filed by Gardner.

4 As is discussed infra, Gardner is in part relying on a

statute that provided health care facilities immunity from suit

during the COVID-19 emergency. To that extent, Gardner could

2

Background. There are two very different versions of what

transpired during the incident and its aftermath. In light of

the procedural posture of the case, we are required to view the

facts in the light most favorable to Stephano, the nonmoving

party. Adams v. Schneider Elec. USA, 492 Mass. 271, 280 (2023).

It bears noting, however, that the situation bore some inherent

volatility, as one side was dealing with the impending death of

a beloved family member, and the other was dealing with managing

a very real public health crisis.

Under emergency guidelines applicable at the time, family

members and others generally were barred from visiting nursing

home patients. There was, however, an exception that applied to

end-of-life scenarios, so long as the visitors were screened.

When Stephano and other members of her family arrived at the

facility to visit her mother, there was no one at the door to

greet or screen them, and no signs posted. While wearing masks,

they made their way to the room where Stephano's mother and

another patient resided. Along the way, they encountered some

facility staff members who were welcoming, sympathetic, and

accommodating, e.g., by going to get chairs for them. However,

pursue an interlocutory appeal as of right pursuant to the

doctrine of present execution. See Lynch v. Crawford, 483 Mass.

631, 634-635 (2019). An order from a single justice of this

court allowed Gardner to pursue an interlocutory appeal based on

arguments unrelated to the immunity statute.

3

the atmosphere quickly changed after two nurse supervisors

learned of the family's presence and viewed their entry as a

security breach and a violation of COVID-19 safety protocols.

There are markedly different accounts of what transpired.

According to Stephano, she and her family were polite and

cooperative throughout. While some other witnesses portray at

least some members of Stephano's family as being loud, rude, and

belligerent.

It is undisputed that Gardner called the police, and that

after the police arrived, the family voluntarily left the

facility. The following day, the director of the facility left

a voicemail for Stephano saying that she could not come visit

her mother again, which upset Stephano greatly. Additionally,

at his direction, the facility obtained a temporary "no

trespass" order barring Stephano from entering the premises, but

later the next day rescinded that order. Stephano thereafter

was allowed to visit her mother but was required to wear full

personal protective gear (PPE) and to be escorted while at the

facility, including having someone present during her visits

with her mother. Stephano's mother died on May 6, 2020; certain

details regarding her final days are reserved for discussion

below.

There was extensive discussion at least among facility

staff about the incident. Some facility personnel falsely

4

stated that Stephano and her family members had refused to

comply with COVID-19 protocols, including the wearing of masks.

At least one employee reported that the family had been drinking

and partying at the dying mother's bedside. As part of its

newsletter to the nursing home community, the facility reported

Gardner's version of the incident, albeit without identifying

Stephano or her family by name.

Discussion. 1. The relationship between Gardner's

immunity argument and its merits arguments. In April of 2020,

the Legislature enacted a statute rendering health care

providers immune from suit with regard to some claims related to

COVID-19. See St. 2020, c. 64, §§ 1-4 (COVID-19 immunity act).

For present purposes, it suffices to say that the statute was

intended to provide health care providers a safe harbor to the

extent they in good faith were following COVID-19 protocols

mandated by the government. The parties debate the scope of the

protections the act offers, including whether it applies to

claims brought by persons other than the patients of the health

care provider whose conduct is at issue.

In the current appeal, Gardner places only limited reliance

on its defense based on the COVID-19 immunity act. In fact,

Gardner makes no argument that it is immune from Stephano's

defamation claim (arguing instead that that claim fails as a

matter of law for a different reason). Even with respect to

5

Stephano's IIED claim, Gardner is not arguing that it is immune

from that claim in its entirety.5 Instead, Gardner argues that

the IIED claim should be dismissed because its treatment of

Stephano did not rise to the level of "extreme and outrageous"

conduct necessary to support such a claim (regardless of whether

any specific individual actions are covered by the COVID-19

immunity act). We turn first to Gardner's arguments unrelated

to the COVID-19 immunity act, and then return to that act only

to the extent necessary.

2. Defamation. Gardner argues that the defamation claim

must be dismissed because Stephano cannot prove financial loss

caused by any defamatory statements. See Ravnikar v.

Bogojavlensky, 438 Mass. 627, 629-630 (2003). "To withstand a

motion for summary judgment for defamation, a plaintiff must

show that: [among other things] . . . . [t]he statement either

caused the plaintiff economic loss (traditionally referred to as

"special damages" or "special harm"), or is actionable without

proof of economic loss." Id. Because it is undisputed that

Stephano did not produce proof of economic loss, the question is

5 Gardner argues that the COVID-19 immunity act precludes

Stephano bringing her IIED claim based on some of the actions it

took, such as its compelling her to leave the premises on the

night of the incident. It does not argue that all of its

actions are shielded in this manner.

6

whether she could fit within one of the four recognized

circumstances in which such proof is excused. See id. at 630.

The judge denied Gardner summary judgment on the defamation

claim notwithstanding the absence of economic loss based on the

following two grounds: "the plaintiff need not prove economic

loss if defamatory statements charged her with a crime or

prejudiced her profession." We agree with Gardner in so far as

it argues that none of the allegedly defamatory statements at

issue stated that Stephano had committed a crime. Although

Gardner called the police to escort her from the premises,

nothing suggests that Gardner had accused Stephano of already

having committed any crime.6

We disagree with Gardner, however, with respect to whether

damage to Stephano's "profession or business" was in play.

Stephano served as the executive assistant to the mayor of

Gardner. In that capacity, she was required to work closely

with a variety of municipal officials (including, for example,

those at the police department), and to deal with members of the

public. Especially during a major health crisis during which

much of the economy was "locked down," we have little trouble

6 We need not reach the question whether -- had Gardner

reported that Stephano had committed a crime -- this would have

been protected petitioning activity that could not support a

claim for defamation. See Polay v. McMahon, 468 Mass. 379, 386-

387 (2014).

7

concluding that someone working closely with a mayor could have

her professional reputation damaged by false allegations that

she was refusing to comply with COVID-19 protocols.7 The same is

true of statements that she was drinking and partying at her

mother's deathbed.8 The judge did not err in declining to rule

that Stephano's defamation claim failed as a matter of law.

3. IIED claim. Gardner argues that Stephano's IIED claim

fails as a matter of law, because its conduct in any event was

not so "extreme and outrageous" as to support such a claim.

Polay v. McMahon, 468 Mass. 379, 385-386 (2014). The Supreme

Judicial Court has characterized that standard as "very high."

Id. at 385. Conduct is "extreme and outrageous" only if it

"go[es] beyond all possible bounds of decency, and [is] regarded

as atrocious, and utterly intolerable in a civilized community"

(citation omitted). Id. See also Lanier v. President & Fellows

of Harvard College, 490 Mass. 37, 48 (2022) ("To qualify as

extreme and outrageous, then, a defendant's actions must flout

the most basic community standards of decency and propriety").

7 To the extent that Gardner is suggesting that an executive

assistant is a clerical position that cannot be considered a

"profession," we reject that notion.

8 The judge did not specifically address whether Stephano

had produced any allegedly defamatory writings that could

qualify as libel (one of the other exceptions recognized by

Ravnikar, 438 Mass. at 630). In light of how we rule, we need

not consider that question.

8

"[H]eartless disregard" is not sufficient. Conley v. Romeri, 60

Mass. App. Ct. 799, 805 (2004).

In assessing whether Stephano has demonstrated that Gardner

acted with more than "heartless disregard," we are to accept her

version of the events. See Iannacchino v. Ford. Motor Co., 451

Mass. 623, 636 (2008). Moreover, the summary judgment context

requires that we put "as harsh a face on [Gardner's]

actions . . . as the basic facts would reasonably allow."

Zaleskas v. Brigham & Women's Hosp., 97 Mass. App. Ct. 55, 68

(2020), quoting Richey v. American Auto. Ass'n, Inc., 380 Mass.

835, 839 (1980). We turn to applying these principles to the

summary judgment record.

Stephano brought an IIED claim based on two different types

of conduct: "conduct that was directed at her," and "conduct

that was directed to her mother." The former includes such

things as Gardner's having Stephano escorted out of the

facility, temporarily barring her from returning, and allowing

her only supervised visits thereafter. Although the question is

close, we conclude that a fact finder could find that Gardner

acted in an extreme and outrageous manner, not merely one that

was boorish and insensitive. See Zaleskas, 97 Mass. App. at 68-

69, and cases cited. Despite complying with all COVID-19 rules

presented to them, Stephano and her family were driven from her

mother's deathbed by two supervising nurses who were known to be

9

bullies and to have filed false incident reports in the past.

Then, without any adequate investigation, Gardner barred

Stephano from returning for over a day despite the mother's

extreme condition,9 and when it restored Stephano's ability to

visit her dying mother, it humiliatingly required her to be

supervised for no apparent good reason. And Gardner took its

actions while knowing that they would cause Stephano great

emotional pain. Viewing the summary judgment record in the

light most favorable to Stephano, we conclude that she has

provided a sufficient showing with respect to the nature of the

conduct that Gardner directed at her to survive summary

judgment. See Marr Equip. Corp. v. I.T.O. Corp. of New England,

14 Mass. App. Ct. 231, 235 (1982) (although summary judgment

record may have supplied "at best a toehold to establish"

liability, that "is enough to survive a motion for summary

judgment").

The same is true with respect to the conduct on which

Stephano relies that was directed at her mother. This had to do

with Gardner's taking the mother off of morphine in the wake of

the April 28 incident. In her complaint, Stephano alleged that

she found her mother in great pain on May 2, 2020, and asked

that the mother be administered morphine. The nurse informed

9 Gardner also barred a pastor from performing last rites on

Stephano's mother.

10

her that because the mother's morphine prescription had been

cancelled, morphine could not be administered until an order

formally was reinstated.10 Stephano further alleged that the

cancelling of the mother's morphine "was the result of some form

of retaliation, arbitrary cruelness, or just recklessness." She

was "emotionally devastated" by Gardner's "leaving [the mother]

to suffer during the final moments of her life," and by making

the mother's passing "unnecessarily painful and just plain mean

and cruel."

In its summary judgment motion, Gardner made no argument

that summarily removing the mother's pain medications could not

be considered extreme and outrageous conduct.11 Instead, Gardner

focused on the timing of when Stephano learned that her mother

had been taken off morphine. It argued that because Stephano

"was not present when her mother was allegedly taken off of

morphine and she did not have 'substantially contemporaneous

knowledge' of the alleged discontinuation . . . [t]he claim for

[IIED] as to the alleged conduct towards the mother must be

dismissed." See Nancy P. v. D'Amato, 401 Mass. 516, 522 (1988)

10Stephano alleged that the nurse was reluctant to share

the details with her despite the fact that she held her mother's

health care proxy.

11We also note that no argument was, or could be, made that

Gardner was immune from a such a claim pursuant to the COVID-19

immunity act.

11

(where IIED action is brought based on tort committed on

another, plaintiff must show "(a) substantially contemporaneous

knowledge of the outrageous conduct and (b) a severe emotional

response"). The judge declined to allow Gardner's summary

judgment motion with respect to any part of Stephano's IIED

claim, without specifically addressing Gardner's timing argument

regarding the discontinuation of the morphine. On appeal,

Gardner's argument with respect to the discontinuation of the

mother's pain medication is confined to a portion of a single

sentence in which it maintains "that the plaintiff could not

have legally suffered distress from the defendants'

discontinuation of her [sic] end-of-life pain medication because

she did not have substantially contemporaneous knowledge of the

act." Putting aside whether this rises to the level of adequate

appellate argument required by Mass. R. App. P. 16 (a) (9), as

appearing in 481 Mass. 1628 (2019), it ignores the fact that when

Stephano learned that her mother's pain medication had been

discontinued, not only had only three or so days passed, but

Gardner's alleged mistreatment of the mother was continuing.12

In short, there is no convincing basis before us to reverse the

12To the extent that Gardner argues that Stephano has not

demonstrated a sufficiently severe emotional reaction to support

an IIED claim, we are unpersuaded. The intense effects that she

alleges she suffered were supported not only by her own

statements but also by the treatment notes of her therapist who

reported what Stephano was suffering in detail.

12

denial of summary judgment as to the IIED claim to the extent

that claim is based on the discontinuation of the mother's pain

medication.

4. The application of the COVID-19 immunity act. The

question remains whether the COVID-19 immunity act shields

Gardner from facing an IIED claim based on some of its actions,

even if its conduct was sufficiently extreme and outrageous to

support such an action. Gardner makes no claim that it enjoys

such immunity for some of its actions (such as its stopping the

mother's pain medication), while arguing that it does so for

those of its actions related to enforcement of COVID-19

protocols. Assuming arguendo that the COVID-19 immunity act

applies to actions that Gardner took toward Stephano, such

immunity applies only to the extent that Gardner acted in "good

faith." See St. 2020, c. 64, § 2 (a) (iii) (providing that

immunity applies only where "the health care facility or health

care professional is arranging for or providing health care

services in good faith"). For present purposes, it suffices to

say that we agree with the judge that Stephano raised a factual

dispute regarding whether Gardner was acting in good faith.

Accordingly, Gardner has not shown at this stage that it is

entitled to immunity from Stephano's IIED claim as a matter of

law.

13

Conclusion. We affirm the order denying Gardner's motions

for summary judgment.

So ordered.

By the Court (Milkey, Henry &

Desmond, JJ.13),

Clerk

Entered: June 28, 2024.

13 The panelists are listed in order of seniority.

14