Bharanidharan Padmanabhan v. Cambridge Health Commission.

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

22-P-276

BHARANIDHARAN PADMANABHAN

vs.

CAMBRIDGE HEALTH COMMISSION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Plaintiff, Dr. Bharanidharan Padmanabhan, appeals from a

summary judgment in favor of the defendant, Cambridge Health

Commission (doing business as the Cambridge Health Alliance)

(CHA), on his remaining claims arising from the termination of

his employment.1 We affirm.

Background.2 The facts are taken from the summary judgment

record, viewed in the light most favorable to the nonmoving

party, Padmanabhan. Between 2007 and 2011, Padmanabhan was a

1 In Padmanabhan v. Cambridge, 99 Mass. App. Ct. 332 (2021)

(Padmanabhan I), we affirmed the dismissal on statute of

limitation grounds of all but three claims. The present matter

is one of several in which Padmanabhan attempted to assert

claims arising from the events at issue here. See id. at 334

n.3 (2021) (listing cases). See also Padmanabhan v. Board of

Registration in Med., 101 Mass. App. Ct. 1109 (2022).

2 We take this summary from Padmanabhan I, as well as from the

facts set forth in CHA's statement of material facts and

attached documents, including Padmanabhan's amended complaint.

neurologist with medical staff privileges at a hospital operated

by CHA. See Padmanabhan v. Cambridge, 99 Mass. App. Ct. 332,

334 (2021) (Padmanabhan I). Following the death of one of

Padmanabhan's patients, CHA undertook an investigation and peer

review process of his practice. In connection with that

process, CHA scheduled an October 31, 2011 "fair hearing" to

determine whether Padmanabhan's medical staff privileges would

permanently be revoked, in which case CHA would be required by

law to report the revocation and its reasons to the Board of

Registration in Medicine (board) and the National Practitioner

Data Bank (Databank), an internet-based database maintained by

the United States Department of Health and Human Services

"containing information on medical malpractice payments and

certain adverse actions related to health care practitioners,

providers, and suppliers." Id. at 335 & n.10 (quotation

omitted).

In the weeks preceding the October 31 hearing, Padmanabhan,

represented by counsel, and CHA negotiated on multiple issues,

including the upcoming fair hearing, Padmanabhan's surrender of

his medical staff privileges, and the precise language that CHA

would use in its report to the board and the Databank.

Padmanabhan's counsel indicated that Padmanabhan would resign

his privileges provided that CHA agreed to use certain language

and basis codes, suggested by Padmanabhan's counsel, in the

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Databank report. Relevant here, Padmanabhan's counsel requested

that the Databank report contain the following language:

"In July 2011, an investigative committee reviewed the

medical records of ten former patients of Dr. Padmanabhan,

including seven pain patients. The investigative committee

found, based on the materials it reviewed, that Dr.

Padmanabhan did not meet the standard of practice expected

of a CHA physician with respect to documentation:

including sufficient medical history, examination,

laboratory data, diagnosis, and follow up. Dr. Padmanabhan

voluntarily resigned his medical staff privileges in

October 2011."

After CHA agreed to the proposed language, counsel for

Padmanabhan wrote to "confirm that Dr. Padmanabhan will be

submitting a letter to CHA re: resignation, and, as a result,

the Fair Hearing scheduled for Monday, October 31, 2011 will not

take place." Upon CHA's receipt of that communication the

pending fair hearing was cancelled.

On October 31, 2011, as counsel had promised, Padmanabhan

submitted a letter to CHA. Padmanabhan commenced that

communication by stating "at the outset that this is not a

'resignation' letter." However, Padmanabhan went on to state,

among other things, that, "My credentials expired before the end

of June 2011," he "no longer [was] a member of the CHA medical

staff," and that he was "formally inform[ing] [CHA] that as of

the end of June 2011, I am no longer on the medical staff at"

CHA.

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CHA informed Padmanabhan's counsel that it construed

Padmanabhan's October 31 letter "as a resignation" of his

medical staff privileges. Neither counsel nor Padmanabhan

responded. CHA then submitted an "adverse action report" to the

Databank using substantially the same language as Padmanabhan's

counsel earlier had suggested and approved; rather than stating

that "Padmanabhan voluntarily resigned his medical staff

privileges in October 2011," as the parties had agreed, CHA's

submitted report stated that:

"Dr. Padmanabhan indicated that he no longer considers

himself part of the [CHA] Medical Staff -- which [CHA] and

his counsel are treating as a resignation/voluntary

surrender effective October 28, 2011."

In addition, in the report, under a section titled "Adverse

Action Classification Code(s)," CHA used the code "1635," which

translated as "voluntary surrender of clinical privilege(s),

while under, or to avoid, investigation relating to professional

competence or conduct." This was the same coding that

Padmanabhan's counsel had requested in an email during

negotiations stating "[i]t is our preference that the action

code for the Board report be revised, if possible, to

resignation and that the action code for the NPDB report be

resignation."

Padmanabhan later challenged the action report, asserting,

among other things, that he "never 'voluntarily resigned' [his]

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privileges at CHA." Upon review, the Secretary of the

Department of Health and Human Services (Secretary) determined

that

"lapsing of your CHA credentials does not negate the fact

that you were considered to have voluntarily surrendered

your privileges while under investigation. . . . Most

importantly, for [Databank] reporting purposes, a

physician's failure to renew his clinical privileges while

under investigation is considered to be a voluntary

surrender of privileges while under investigation."

Accordingly, the Secretary ultimately determined "the Report is

factually accurate as submitted" and "there is no basis to

conclude that the report should not have been filed or that for

agency purposes it is not accurate, complete, timely or

relevant."

In 2014 Padmanadhan, in a "sprawling fifty-six-page

complaint asserting multiple claims against multiple

defendants," Padmanadhan I, 99 Mass. App. Ct. at 333, filed this

action. We affirmed the dismissal of all claims against

seventy-two named defendants except Padmanabhan's second

(retaliation), fourth (defamation), eighth (fraud), and

declaratory relief counts asserted against CHA. Id. at 343-344.

Shortly after Padmanadhan I was returned to the Superior Court's

docket, a judge conducted a litigation control conference. A

different judge (motion judge) conducted a hearing on CHA's

motion for summary judgment, after which Padmanabhan moved for

leave to file additional pleadings. The motion judge allowed

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CHA's motion, denied Padmanabhan's, and entered judgment for

CHA. This appeal followed.

Discussion. 1. Initial matters. We first address

Padmanabhan's claim that the motion judge was not impartial.

That the judge allowed certain of CHA's motions or, ultimately,

entered summary judgment on Padmanabhan's claims, does not by

itself demonstrate bias or partiality. Clark v. Clark, 47 Mass.

App. Ct. 737, 739 (1999) ("The mere fact that a party suffers

adverse rulings during litigation does not establish lack of

judicial impartiality"). In short, after a thorough review of

the record, we conclude that there is nothing in the judge's

statements, actions, or history that supports Padmanabhan's

assertion that the judge either "aided and abetted public

corruption" or displayed or otherwise reasonably could be

perceived to harbor any partiality.

Nor are we persuaded that Padmanabhan was denied discovery

before summary judgment. The order of remand in Padmanabhan I

did not require the judge to order discovery or set a trial.

Rather, the Padmanabhan I order partially vacated the judgment

and remanded, without specification, for further proceedings on

certain limited issues. Padmanabhan I, 99 Mass. App. Ct. at

344. "Case management is committed to the discretion of the

trial judge, and we review the decision for an abuse of

discretion." Eagle Fund, Ltd. v. Sarkans, 63 Mass. App. Ct. 79,

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85 (2005). The litigation control conference judge acted well

within that discretion, after being informed that CHA intended

to serve a dispositive motion, by setting a briefing schedule

for CHA's summary judgment motion. Padmanabhan, despite the

opportunity to address the court during the litigation control

conference, did not request discovery in advance of the summary

judgment motion. Had Padmanabhan thereafter been unable "for

reasons stated" to present "facts essential to justify his

opposition" to that motion, he could have requested a

continuance to allow "deposition[s] to be taken or discovery to

be had." Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974).

Padmanabhan made no such request.

2. Summary judgment. Summary judgment is appropriate

where there are no genuine issues of material fact, and the

moving party is entitled to judgment as a matter of law. See

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002);

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). "We review a grant of summary judgment de novo." Blake

v. Hometown Am. Communities, Inc., 486 Mass. 268, 272 (2020),

quoting DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799

(2013).

Padmanabhan argues that there are genuinely disputed issues

of material fact based on his oral statement to the motion judge

that he "dispute[d] every single fact in the Defendant's . . .

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affidavit of facts." We disagree. After being served with

CHA's motion for summary judgment, Padmanabhan submitted an

opposition memorandum but he did not respond, as required, to

CHA's statements of material fact. See Rule 9A(b)(5)(iii)(A) of

the Rules of the Superior Court (2017) (party opposing summary

judgment motion must serve "a response to the Moving Party's

Statement of Facts," stating whether a specific fact "is

disputed, and, if so, cite to the specific evidence, if any, in

the Joint Appendix that demonstrates the dispute"). When

questioned by the motion judge, Padmanabhan responded only with

a blanket denial of the facts set forth by CHA. However, as the

motion judge observed, Padmanabhan did not cite to any

evidentiary material that would create a genuine dispute. See

LaLonde v. Eissner, 405 Mass. 207, 209 (1989) ("the opposing

party cannot rest on [their] . . . mere assertions of disputed

facts to defeat the motion for summary judgment"). Nor does he

do so now.3 Although he argues on appeal that, with discovery,

3 Indeed, although he here argues to the contrary, Padmanabhan

still has not identified any material facts that may arguably,

genuinely be in dispute. While Padmanabhan asserts, for

example, that he consistently denied that he "voluntarily

resigned" and that he did not know of his counsel's negotiations

or representations, even if we assume that such assertions are

sufficient to create a dispute of fact, such disputes would not

be material in the sense that those assertions, if credited,

would not provide a basis for a judgment in his favor. See

notes 4, 5, infra. See also Carey v. New England Organ Bank,

446 Mass. 270, 278 (2006) ("Only those facts that, if true,

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he could adduce evidence sufficient to demonstrate a genuine

issue of material fact, he did not timely request discovery in

the trial court.

As a result, the motion judge deemed the facts set forth in

CHA's statement to be without genuine dispute. In doing so the

judge acted within his discretion. See Mass. R. Civ. P. 56 (e),

365 Mass. 824 (1974) (party opposing summary judgment "may not

rest upon the mere allegations or denials of [their] pleading,

but [their] response . . . must set forth specific facts showing

that there is a genuine issue for trial"); Rule 9A(b)(5)(iii) of

the Rules of the Superior Court ("each fact set forth in the

moving party's statement of facts is deemed to have been

admitted unless properly controverted in the manner [set] forth

in this [p]aragraph").4

a. Retaliation. Padmanabhan alleges that CHA retaliated

against him when it "intentionally shared an incorrect report

with the board and the [Databank] on October 28, 2011,"

Padmanabhan I, 99 Mass. App. Ct. at 344, after Padmanabhan

purportedly disclosed CHA's "misconduct and illegalities." The

provide a basis for a reasonable jury to find for a party are

material").

4 Even if Padmanabhan had properly responded, as the judge noted,

it would have made no difference in this case because "those

now-admitted facts merely cite or accurately quote [litigation-

related] documents . . . whose contents cannot be disputed."

Thus, because "CHA's arguments turn on the undisputed content of

these Exhibits . . . analysis can focus on the documents

themselves."

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motion judge, reasoning that Padmanabhan was equitably estopped

from raising such a claim, entered summary judgment. We agree

with the judge's conclusion that the defendant was entitled to

summary judgment, but we need not go down the avenue of parsing

the finer points of equitable estoppel.

Like all the surviving claims, the retaliation claim is

predicated on an allegation that the report shared with the

board and the Databank was incorrect. See Padmanabhan I, 99

Mass. App. Ct. at 344. According to Padmanabhan, the report was

incorrect only to the extent that CHA represented that

Padmanabhan "voluntarily resigned" his CHA medical staff

privileges. However, the Secretary, who is responsible for

maintenance of the Database, specifically found CHA's statement

that "Padmanabhan indicated that he no longer considers himself

part of the [CHA] medical staff -- which [CHA] and his counsel

are treating as a resignation/voluntary surrender" was accurate

given the Secretary's construction of those words of art.

Because the claim of retaliation arises from the adverse action

letter and the coding, the undisputed fact that they are

accurate in the eyes of the Secretary means that Padmanabhan

will not be able to prove his claim of retaliation.5 Cf. Reilly

v. Associated Press, 59 Mass. App. Ct. 764, 770 (2003) ("when a

5 Accordingly, we need not address CHA's alternative privilege

arguments.

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statement is substantially true, a minor inaccuracy will not

support a defamation claim").

b. Defamation. The same is true of Padmanabhan's

defamation claim. In order to establish a claim for defamation,

a plaintiff must prove four elements: "(1) the defendant

published a defamatory statement of and concerning the

plaintiff; (2) the statement was a false statement of fact (as

opposed to opinion); (3) the defendant was at fault for making

the statement, and any privilege that may have attached to the

statement was abused; and (4) the plaintiff suffered damages as

a result, or the statement was of the type that is actionable

without proof of economic loss." Lawless v. Estrella, 99 Mass.

App. Ct. 16, 18-19 (2020). A defamation claim will not lie if

the statement to which objection is taken in fact is true. See

Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 482

(1978) ("truth is an absolute defense"). Therefore, CHA is

entitled to summary judgment on the claim of defamation.

c. Fraud. "[A] claim for deceit (i.e., fraud) must show

the defendant (1) made a false representation of material fact,

(2) with knowledge of its falsity, (3) for the purpose of

inducing the plaintiff to act on this representation, (4) which

the plaintiff justifiably relied on as being true, to her [or

his] detriment." Sullivan v. Five Acres Realty Trust, 487 Mass.

64, 73 (2021), quoting Greenleaf Arms Realty Trust I, LLC v. New

11

Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). As

limited by Padmanabhan I, the remaining fraud claim against CHA

is based on CHA's representation in its adverse action report

that Padmanabhan had resigned his medical staff privileges (as

opposed to being terminated from his position). Padmanabhan I,

99 Mass. App. Ct. at 343-344. Padmanabhan's fraud claim is

fundamentally without basis because it is not directed at any

statement by CHA that was intended to induce reliance by

Padmanabhan. In other words, the record is devoid of evidence

that CHA made any misrepresentation intended to induce

Padmanabhan to act in any particular manner or that he in fact

relied on any alleged misrepresentation to his detriment. See

Sullivan, 487 Mass. at 73. In any event, the accuracy of the

representation, as reflected in the Secretary's determination

that is part of the summary judgment record, would serve

independently to defeat Padmanabhan's claim of fraud.

Accordingly, we conclude that CHA was entitled to summary

judgment on the claim of fraud.

3. Final matters. After the Padmanabhan I rescript

entered, a Superior Court judge conducted a litigation control

conference. In response to the judge's inquiry "what do we need

to do next," counsel for CHA informed the judge and Padmanabhan

that CHA intended to file a motion to dismiss on all remaining

claims based on correspondence by and between CHA and

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Padmanabhan's counsel. The judge responded that a motion for

judgment on the pleadings or summary judgment might "make more

sense." She asked Padmanabhan, "Dr. what do you see as being

the next steps?" Padmanabhan began to discuss the factual basis

for the case, observed that "it has been an incredibly long

case," and addressed the time he thought necessary to respond to

CHA. The judge then set a briefing schedule and a hearing date

for "whatever the dispositive motion is that [CHA] is bringing."

About six weeks thereafter, Padmanabhan filed a motion for

sanctions, arguing in substance that counsel, by disclosing the

referenced correspondence, and by stating CHA's intent to file a

dispositive motion based thereon, committed a fraud on the court

and unreasonably delayed the proceedings "given that CHA . . .

waited a full three (3) months before declaring its intention to

file a second motion to dismiss." The judge denied

Padmanabhan's motion "as unjustified in fact or law." Based on

our review of the record, we discern no abuse of discretion in

this ruling. See Wong v. Luu, 472 Mass. 208, 220 (2015) ("We

review the judge's imposition of sanctions under the court's

inherent powers for abuse of discretion").

Finally, after the hearing on CHA's summary judgment

motion, Padmanabhan sought leave to file pleadings that,

collectively considered, amounted to an additional opposition to

CHA's summary judgment motion; one of those pleadings purported

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to be a rule 9A response to CHA's statements of material facts.

The judge denied Padmanabhan's motion. After reviewing

Padmanabhan's proffered pleadings, we see nothing that was not,

or at the very least could not have been, raised before hearing.

We agree with the judge's conclusion that, even in his

attempted, albeit untimely, response to CHA's statements of

material fact, Padmanabhan paid "only lip service to the . . .

requirement" that he support any purported factual disputes by

specific citation to supporting record materials. Accordingly,

we discern no abuse of discretion in the judge's denial of

Padmanabhan's motion.6

Judgment affirmed.

By the Court (Rubin,

Englander & Brennan, JJ.7),

Clerk

Entered: May 23, 2023.

6 To the extent we have not specifically addressed any of

Padmanabhan's arguments, "they have not been overlooked. We

find nothing in them that requires discussion." Department of

Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004) (quotation

omitted).

7 The panelists are listed in order of seniority.

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