# Kalter v. Wood

> Massachusetts Appeals Court · October 19, 2006 · 67 Mass. App. Ct. 584

URL: https://www.frixlaw.com/law-library/cases/6462812

## Case

- **Full name:** Albert R. Kalter v. Anita Wood
- **Court:** Massachusetts Appeals Court
- **Decided:** October 19, 2006
- **Citations:** 67 Mass. App. Ct. 584; 855 N.E.2d 421; 2006 Mass. App. LEXIS 1070
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Brown, Grasso
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6462812

## Opinion text

Brown, J.
(concurring in part and dissenting in part). I concur with the majority that Anita Wood’s letter to Blue Cross Blue Shield of Massachusetts (BCBS) was not a “statement made in *592 connection with an issue under [governmental] consideration or review,” G. L. c. 231, § 59H, as we construe that portion of the “anti-SLAPP” statute’s definition. 1
But what I take from Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005), is the importance of the context in which Wood’s letter to BCBS’s grievance program was made, considered in light of the anti-SLAPP statute’s purpose. See id. at 253-254 . As noted by the majority, Wood’s letter to BCBS was identical to those protected statements she made to the Braintree police department and the Division of Professional Licensure, all complaining about the quality of Albert R. Kalter’s health care services and his inappropriate conduct in the course of rendering those services. The contents of the BCBS letter and its intended recipient, BCBS’s grievance program, make clear that Wood sent a copy of the same letter to BCBS in furtherance of resolving her grievance concerning the caliber of BCBS’s provider. Wood’s letter to BCBS, in addition to mirroring the content of her petitions to two governmental entities, also mirrored their purpose, as sent “in furtherance of the objective served by governmental consideration of the issue under review — namely, the resolution of grievances.” Plante v. Wylie, 63 Mass. App. Ct. 151, 159 (2005). Contrast Global NAPs, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 606-607 (2005) (despite a pending arbitration appeal, disparaging remarks to a newspaper about a competitor were deemed neither connected to, nor in furtherance of, governmental consideration or review).
Wood emphasizes that her complaint to BCBS was the first step, pursuant to BCBS’s State-mandated grievance program, in procuring governmental review of the quality of care provided by Massachusetts medical insurance carriers. In considering the context in which the BCBS letter was sent, the BCBS grievance program deserves a closer look.
Massachusetts health insurance carriers are required by law to maintain grievance programs, in order to provide “adequate *593 consideration and timely resolution” of patient complaints concerning coverage and quality of care. See G. L. c. 1760, § 13(a), inserted by St. 2000, c. 141, § 27. The office of patient protection was established by the Legislature, pursuant to G. L. c. Ill, § 217, to administer and enforce the standards and procedures by which health insurance carriers implement their grievance programs, and to collect information derived from these programs. 2 *See G. L. c. 111, § 217(a)(1); G. L. c. 1760, §§ 6, 7, 13, 14. 3 To this end, G. L. c. 1760, § 7, inserted by St. 2000, c. 141, § 27, requires carriers to report to the office of patient protection information that includes, under § 7(b)(1), “independently published information assessing insured satisfaction” with the quality of health care services provided by the carrier and, under § 7(b)(4), “a report detailing, for the previous calendar year, the total number of: (i) filed grievances, grievances that were approved internally, grievances that were denied internally, and grievances that were withdrawn before resolution; and (ii) external appeals pursued after exhausting the internal grievance process and the resolution of all such external appeals.” 4 As to each category of grievance, § 7(b)(4) also requires the carrier to identify, to the extent such information is *594 available, “the demographics of such insureds, which shall include, but need not be limited to, race, gender and age.” 5 General Laws c. 1760, § 13(a)(1), further mandates that carriers maintain records of patient grievances and the carriers’ responses thereto for a period of seven years, for inspection by the Commissioner of Insurance.
Taken in this context, Wood’s letter to the BCBS grievance program, complaining about the quality of care she received from one of its providers, takes on increased significance, as representing not merely a means to redress her own personal wrong, but as an integral part of the regulatory scheme by which the Department of Public Health oversees patient protection and, in particular, the quality of health care plans and services being offered to various segments of the population by various carriers. In view of all the circumstances, Wood’s letter to the BCBS grievance program, though not directly connected to a pending matter under governmental review, should be considered under § 59H to be a “statement reasonably likely to encourage consideration or review” of the quality of the health care services being offered by BCBS, as well as of the quality of BCBS’s responsiveness to its insureds, by the governmental entities charged with oversight and accreditation of health insurance carriers.
BCBS itself is not a governmental entity; on that point, the judge was correct. But to the extent the Department of Public Health is charged with oversight of the quality of health care plans and services provided by Massachusetts carriers, the accomplishment of its statutory purpose is largely dependent on the State-mandated administration by individual carriers of their grievance programs, in order to implement the legislative goal of prompt resolution of such grievances, and of annual reporting of numerical and demographic information derived from those programs to the office of patient protection. I am mindful of the overriding purpose of the anti-SLAPP statute, in recogniz *595 ing that subjecting patients who file grievances to defamation and other suits would likely have a chilling effect on patients’ utilization of carrier grievance programs, even though such programs are themselves statutorily mandated. Erosion of patient confidence in carrier-administered grievance programs would undermine the efficacy of the statutory scheme whereby governmental monitoring is achieved through annual reporting and review of grievance statistics, and ultimately frustrate State oversight of the quality of health care plans and services provided through these carriers. See, e.g., Baker v. Parsons, 434 Mass. 543, 549 (2001) (discussing the chilling effect of a suit brought against a biologist for providing information to State and Federal agencies charged with environmental protection, about the effect of plaintiff’s proposed development on bird habitats); Kobrin v. Gastfriend, 443 Mass. 327, 335-336 (2005).
Based on the foregoing, Wood’s letter to the BCBS grievance program should be treated as protected petitioning activity under G. L. c. 231, § 59H, as a “statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding.” As a result, the denial of the defendant’s special motion to dismiss, on the basis that her letter to BCBS’s grievance program was not petitioning activity, should be reversed. However, because Kalter claims that Wood lacked “any reasonable factual support or any arguable basis in law” for her petitioning activity, see § 59H; Baker v. Parsons, 434 Mass. at 552-554 , and that her actions caused him actual injury, see § 59H, I would remand the matter to the Superior Court so that the parties’ factual disputes could be resolved by the judge, in order to determine whether Kalter met his burden. See Baker v. Parsons, 434 Mass. at 546 n.7, 553-554 (“The resolution of such factual disputes, based on the conflicting pleadings and affidavits submitted on a special motion to dismiss, is for the motion judge,” applying the preponderance of the evidence standard to determine whether the defendant lacked any reasonable factual support or any arguable basis in law for her petitioning activity).
Although I agree with the majority on this point, I would note that arguably, under the reasoning articulated in Wynne v. Creigle, 63 Mass. App. Ct. 246, 254 (2005), it is not entirely clear why Wood’s “mirror-image” letter to BCBS would not constitute such a statement.
The office of patient protection is also responsible for assisting patients directly with questions or concerns about their grievance rights. See G. L c. 111, § 217(a)(3); G. L. c. 1760, § 13(a)(3). In addition, the office of patient protection is charged with making information collected by it accessible to consumers through maintenance of an Internet site, to include the “health plan report card” developed pursuant to G. L. c. 118G, § 24, information pertaining to quality assurance, and information on health plan premiums, finance, and policy. See G. L. c. 111, § 217(a)(2). In addition to its direct role in collecting, monitoring, and disseminating information for consumers and patients, the office of patient protection advises the Commissioner of Public Health and other oversight agencies “on actions, including legislation, which may improve the quality of managed care health insurance plans.” G. L. c. 111, § 217(a)(6), inserted by St. 2000, c. 141, § 3.
A grievance is broadly defined, in G. L. c. 1760, § 1, inserted by St. 2000, c. 141, § 27, as “any oral or written complaint submitted to the carrier which has been initiated by an insured, or on behalf of an insured with the consent of the insured, concerning any aspect or action of the carrier relative to the insured, including, but not limited to, review of adverse determinations regarding scope of coverage, denial of services, quality of care and administrative operations, in accordance with the requirements of this chapter.”
As a general matter, external appeals are available for review of a carrier’s adverse determinations based on failure to meet the requirements for coverage for particular health care services. See G. L. c. 1760, §§ 1, 14.
This is no mere formality. Failure to file the requisite information may expose the carrier to a fine of $5,000 per day, under G. L. c. 1760, § 8. Compliance with the reporting requirement is also incorporated into the minimum standards required for carrier accreditation by the Division of Insurance, as administered by the bureau of managed care under G. L. c. 1760, § 2.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6462812. Public record. Not legal advice.