# Strong v. Brakeley

> Superior Court of Maine · May 5, 2015

URL: https://www.frixlaw.com/law-library/cases/10810790

## Case

- **Court:** Superior Court of Maine
- **Decided:** May 5, 2015
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** MaryGay Kennedy
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

3
"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).

7
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810790. Public record. Not legal advice.