The opinion
STATE OF MAINE SUPERIOR COURT
ANDROSCOGGIN, ss CNILACTION
AUBSC-CV-13-144
KEVIN F. STRONG,
Plaintiff ANDROSCOGGIN
SUPERIOR COURT
v. ORDER ON MOTION FOR
SUMMARY JUDGMENT
REBECCA M. BRAKELEY
and
JONATHAN M. BAUSMAN,
Defendants
Before the court is the defendants' motion for summary judgment.
Plaintiff Kevin Strong's complaint alleges that defendants made false and
defamatory statements in response to questionnaires circulated by a company
working on behalf of Strong's potential employer. His complaint includes three
counts: (1) defamation, (2) tortious interference with a business relationship, and
(3) punitive damages. Defendants argue that they are absolutely immune from
suit under the Maine Health Security Act, 24 M.R.S. § 2511. For the following
reasons, defendants' motion is granted.
BACKGROUND
Dr. Kevin Strong is a pediatric physician and previously worked at
Central Maine Medical Center ("CMMC") with defendants Drs. Rebecca
Brakeley and Jonathan Bausman, who are also pediatric physicians. (Pl.'s Add.
S.M.F. C)[C)[ 43-44.) In January 2013, CMMC exercised its option to terminate Dr.
Strong's contract for business reasons. (Pl.'s Add. S.M.F. C)[ 47.) During Dr.
Strong's subsequent job search, he used Dr. Brakeley as a reference, and she gave
Dr. Strong a positive letter of recommendation. (Pl.'s Add. S.M.F. <J[<J[ 50-51.) In
May 2013, Dr. Strong accepted a position with a private pediatric practice in
Lewiston. (Pl.'s Add. S.M.F. <J[<J[ 52-53.) Dr. Strong then began the application
process for obtaining privileges at St. Mary's Regional Medical Center and
CMMC. (Pl.'s Add. S.M.F. <J[ 53.)
Before Dr. Strong started working, he received a letter from an attorney at
CMMC threatening legal action against him if he pursued private practice in
Lewiston because of a non-compete clause in his former employment contract
with CMMC. (Pl.'s Add. S.M.F. <J[ 55.) After receiving this letter, Dr. Strong was
notified by St. Mary's that it had concerns about two references that were
received through an independent contractor that St. Mary's uses to obtain
information required to process applications for staff privileges. (Pl.'s Add.
S.M.F. <J[ 56.) Synernet, the independent contractor, is a "credentials verification
organization, which collects, verifies, and dispenses physician credentialing
information" to its customers, which include hospitals. (Def.'s Supp. S.M.F. <J[ 4.)
St. Mary's contracted with Synernet to collect credentialing information, and
Synernet collected information on Dr. Strong when he applied for staff privileges
at St. Mary's. (Def.'s Supp. S.M.F. <J[ 5.)
In July 2013, Synernet sent Drs. Brakeley and Bausman "Professional
Reference Questionnaires" as part of its effort to collect credentialing information
about Dr. Strong. 1 (Def.'s Supp. S.M.F. <J[ 9.) The questionnaires stated that they
were sent "to request your assistance in providing information which will assist
1 Plaintiff notes that Drs. Brakeley and Bausman were not aware that the questionnaires
would be used in connection with Dr. Strong's application for staffing privileges at St.
Mary's. (Pl.'s Opp. S.M.F.9[9.)
2
medical staff leaders involved in making credentialing and privileging
recommendations .... " (Pl.'s Add. S.M.F. '1I 20.) Drs. Brakeley and Bausman
filled out the questionnaires and returned them to Synernet. (Def.'s Supp. S.M.F.
'11:'11: 10-11.) Synernet then forwarded them to St. Mary's. (Def.'s Supp. S.M.F. '1I
12.)
Dr. Strong obtained copies of the two references and was shocked to
discover that they were from Drs. Brakeley and Bausman. (Pl.'s Add. S.M.F. '1I
57.) The references included allegations that Dr. Strong had poor basic medical
and clinical knowledge, had poor availability and thoroughness of patient care,
had poor relationships with physicians and other professional staff, had poor
communication with patients and families, and had been the subject of
disciplinary action. (Pl.'s Add. S.M.F. '11:'11: 58, 60, 62-63.) Dr. Strong was eventually
able to obtain privileges at St. Mary's but only after expending additional time,
effort, and expense to correct the false statements provided in the questionnaires.
(Pl.'s Add. S.M.F. '1I 67.)
Dr. Strong filed his complaint on October 15, 2013, which he amended on
October 31, 2013. Defendants filed a motion to dismiss, which the court denied
on December 17, 2013. The court limited discovery to issues related to whether
the defendants are entitled to absolute immunity for their responses to the
reference questionnaires under 24 M.R.S. § 2511. On December 22, 2014,
defendants moved for summary judgment. The sole issue before the court is
whether 24 M.R.S. § 2511 provides immunity to Drs. Brakeley and Bausman for
their responses to the Synernet questionnaires.
DISCUSSION
1. Standard of Review
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"Summary judgment is appropriate if the record reflects that there is no
genuine issue of material fact and the movant is entitled to judgment as a matter
of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, <J[ 12, 86 A.3d 52
(quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, <J[ 8, 8 A.3d 646). "A
material fact is one that can affect the outcome of the case, and there is a genuine
issue when there is sufficient evidence for a fact-finder to choose between
competing versions of the fact." Mcilroy v. Gibson's Apple Orchard, 2012 ME 59, <J[
7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89, <J[ 17, 26 A.3d 794).
"Even when one party's version of the facts appears more credible and
persuasive to the court, any genuine factual dispute must be resolved through
fact-finding, regardless of the nonmoving party's likelihood of success." Lewis v.
Concord Gen. Mut. Ins. Co., 2014 ME 34, <J[ 10, 87 A.3d 732. If facts are undisputed
but nevertheless capable of supporting conflicting, plausible inferences, "the
choice between those inferences is not for the court on summary judgment." Id.
2. Immunity Under 24 M.R.S. § 2511
a. Absolute vs. Conditional Privilege
Defendants argue that the basis for Dr. Strong's complaint, defendants'
responses to the reference questionnaires are absolutely privileged, and they are
therefore entitled to judgment as a matter of law. Under 24 M.R.S. § 2511:
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 ....
The Law Court has applied this section, but found it unnecessary "to express an
opinion whether the immunity provided by section 2511 is absolute or
4
conditioned on the reporter acting without malice .... " McCullough v. Visiting
Nurse Serv. of S. Me., Inc., 1997 ME 55, <JI 14, 691 A.2d 1201. The legislative history
of the statute explicitly acknowledges that physicians can receive absolute or
"blanket" immunity under the Act. The following explains the old law and how
it was changed in 1988:
Under existing law, immunity from civil and criminal liability is
accorded in certain circumstances to any person, physician, health
care provider, physicians' professional society, physicians'
professional competence committee member or member of the
medical or osteopathic board or related health care authority. The
immunity applies if an individual or organization in the list above
acts without malice in reporting information to an appropriate
health care board or authority, in assisting in preparing information
to be so reported, or in assisting the board or authority to carry out
its duties with regard to the health care profession.
Section 5 makes 3 substantive changes in the existing law.
Third, section 5 accords physicians and the listed health care
organizations immunity for reporting to and assisting a pertinent
health care board, authority or committee without regard to
whether the actions were with malice. This blanket immunity is not
accorded to other persons reporting to or assisting the health care
boards, authorities or committees; the 'malice' standard remains for
these persons.
[B]lanket civil immunity, as opposed to immunity applying a
'malice' standard, is accorded physicians and the listed health care
organizations because they, as opposed to other persons, have
certain duties to report imposed by the Maine Health Security Act.
L.D. 2520, Statement of Fact,§ 5, at 11-12 (113th Leg. 1988). Thus, as physicians,
Drs. Brakeley and Bausman could receive absolute immunity for the statements
in the questionnaires.
b. "Pursuant to Law" Requirement
That defendants could receive blanket immunity under the Act does not
end the analysis. The section granting immunity applies to the following
situations:
5
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 (emphasis added). Dr. Strong argues that, because Drs. Brakeley
and Bausman were not required to respond to the reference questionnaires, the
reports were not made "pursuant to law" or as "provided by law" under these
sections.
Under the Act, professional competence committee is defined as follows:
"Professional competence committee" means any of the following
when engaging in professional competence review activity:
A. A health care entity;
B. An individual or group, such as a medical staff
officer, department or committee, to which a health
care entity delegates responsibility for professional
competence review activity;
C. Entities and persons, including contractors,
consultants, attorneys and staff, who assist in
performing professional competence review activities;
or
D. Joint committees of 2 or more health care entities
24 M.R.S. § 2502(4). Synemet meets the definition of a professional competence
committee as an entity that "assist[s] in performing professional competence
2
review activities." As a licensed hospital, St. Mary's is obligated under the Act
2 The Act's definitions section further provides:
"Professional competence review activity" means study, evaluation,
investigation, recommendation or action, by or on behalf of a health care entity
and carried out by a professional competence committee, necessary to:
A. Maintain or improve the quality of care rendered in, through or by the
health care entity or by physicians;
B. Reduce morbidity and mortality; or
6
to ensure that "provider privileges extended or subsequently renewed to any
physician are in accordance with those recommended by the medical staff as
being consistent with that physician's training, experience and professional
competence." 24 M.R.S. § 2503(2). Synernet assists St. Mary's in fulfilling this
obligation under the Act.
By responding to Synernet' s reference questionnaires, Drs. Brakeley and
Bausman were "assisting the ... committee in carrying out ... its duties or
functions provided by law." 24 M.R.S. § 2511(3). St. Mary's is obligated to ensure
that its professional staff is competent before extending staffing privileges to new
physicians. The hospital uses Synernet to assist with this function, which makes
Synernet a competence review committee under the Act. Drs. Brakeley and
Bausman did not send unsolicited negative references to St. Mary's. Rather, they
only responded to specific requests that were made pursuant to the hospital's
statutory duties. Thus, they were assisting a competence review committee and
the answers provided in the reference questionnaires are entitled to absolute
immunity.
Dr. Strong argues that only "legitimate" responses to the questionnaires
should receive immunity. He argues that, if a physician chooses to respond to a
reference questionnaire, the physician must provide accurate information. He
has produced evidence that Drs. Brakeley and Bausman provided false
information on the form. Dr. Strong essentially argues that the court should
apply the old "malice" standard that applied before the MHSA's immunity
provision was amended. Under the absolute immunity provided under current
C. Establish and enforce appropriate standards of professional qualification,
competence, conduct or performance.
24 M.R.S. § 2502(4-B).
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law, the court does not need to look beyond whether the information was
provided by a physician to assist a committee in carrying out a statutory duty.
Having concluded that the immunity statute applies to the questionnaires, the
court does not need to determine whether the information provided was
accurate. See Walter v. Jacobs, ANDSC-CV-2004-157, at 4-5 (Me. Super. Ct., And.
Cnty., Nov. 10, 2004) (concluding that statute provided immunity without
looking to the content of the statements).
CONCLUSION
Drs. Brakeley and Bausman are absolutely immune from civil liability for
statements made in their answers to reference questionnaires. Accordingly, they
are entitled to judgment as a matter of law.
The entry is:
Defendants' motion for summary judgment is granted on all counts
of plaintiff's complaint.
IT~dc ay Kennedy
V e, Superior Court
8
KEVIN STRONG - PLAINTIFF SUPERIOR COURT
ANDROSCOGGIN, ss.
Attorney for: KEVIN STRONG Docket No AUBSC-CV-2013-00144
PHILLIP E JOHNSON - RETAINED
JOHNSON WEBBERT & YOUNG LLP
160 CAPITOL ST STE 3 DOCKET RECORD
PO BOX 79
AUGUSTA ME 04332-0079
VS
REBECCA BRAKELEY - DEFENDANT
Attorney for: REBECCA BRAKELEY
AMY DIETERICH - RETAINED 12/22/2014
SKELTON TAINTOR & ABBOTT
95 MAIN STREET
AUBURN ME 04210
Attorney for: REBECCA BRAKELEY
MICHAEL POULIN - RETAINED 10/31/2013
SKELTON TAINTOR & ABBOTT
95 MAIN STREET
AUBURN ME 04210
JONATHAN BAUSMAN - DEFENDANT
Attorney for: JONATHAN BAUSMAN
AMY DIETERICH - RETAINED 12/22/2014
SKELTON TAINTOR & ABBOTT
95 MAIN STREET
AUBURN ME 04210
Attorney for: JONATHAN BAUSMAN
MICHAEL POULIN - RETAINED 10/31/2013
SKELTON TAINTOR & ABBOTT
95 MAIN STREET
AUBURN ME 04210
Filing Document: COMPLAINT Minor Case Type: LIBEL/DEFAMATION
Filing Date: 10/15/2013
Docket Events:
10/15/2013 FILING DOCUMENT - COMPLAINT FILED ON 10/15/2013
10/15/2013 Party(s): KEVIN STRONG
ATTORNEY - RETAINED ENTERED ON 10/15/2013
Plaintiff's Attorney: PHILLIP E JOHNSON
10/23/2013 Party(s): JONATHAN BAUSMAN
SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 10/17/2013
JONATHAN BAUSMAN
10/23/2013 Party(s): JONATHAN BAUSMAN
SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 10/23/2013
Page 1 of 5 Printed on: 06/10/2015