# Berk v. Kronlund

> Massachusetts Appeals Court · June 14, 2023

URL: https://www.frixlaw.com/law-library/cases/9401839

## Case

- **Court:** Massachusetts Appeals Court
- **Decided:** June 14, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
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1030; SJCReporter@sjc.state.ma.us

22-P-4 Appeals Court

STEVEN L. BERK & another1 vs. KENNETH KRONLUND & another.2

No. 22-P-4.

Worcester. October 14, 2022. - June 14, 2023.

Present: Wolohojian, Blake, & Desmond, JJ.

Narcotic Drugs. Negligence, Doctor. Board of Registration in
Medicine. Medical Malpractice, Immunity. "Anti-SLAPP"
Statute. Practice, Civil, Motion to dismiss, Summary
judgment, Attorney's fees.

Civil action commenced in the Superior Court Department on
June 30, 2017.

A special motion to dismiss was heard by Janet Kenton-
Walker, J., and the remaining issue was heard by her on a motion
for summary judgment.

Bart Heemskerk for the plaintiffs.
Thomas Bright for the defendants.

1 Steven L. Berk, M.D., P.C.

2 Reliant Medical Group, Inc.
2

DESMOND, J. This case arises from a dispute between the

plaintiff and defendant, both of whom are physicians.3 The

defendant referred the plaintiff, his patient at the time, to

Physician Health Services, Inc. (PHS),4 after becoming concerned

about the plaintiff's ability to practice medicine in light of

his opioid dependence. The plaintiff subsequently filed a

complaint in the Superior Court against the defendant, asserting

negligence; interference with advantageous business relations;

violation of the Massachusetts Civil Rights Act, G. L. c. 12,

§§ 11H, 11I; and invasion of privacy. The latter three claims

were disposed of when the judge allowed the defendant's special

motion to dismiss under the "anti-SLAPP" statute, G. L. c. 231,

§ 59H. Summary judgment subsequently entered on the negligence

claim on the ground that the defendant's actions were protected

by the limited immunity under G. L. c. 112, § 5G (a), to those

making reports to peer review committees, and because the

undisputed material facts showed that the defendant was entitled

to judgment as a matter of law. The plaintiff appeals, arguing

3 The extent to which there exists any claim against the
corporate defendant is unclear. For the sake of clarity, we use
"plaintiff" and "defendant" to describe the individual parties
alongside their respective corporate coparties.

4 PHS, as discussed in greater detail infra, is a nonprofit
corporation founded by the Massachusetts Medical Society to
address physician health.
3

that the judge erred in allowing the special motion to dismiss

and the motion for summary judgment. We affirm.

Background. The plaintiff and defendant are both board

certified, licensed physicians in Massachusetts.5 The plaintiff,

an ophthalmologist then employed by the University of

Massachusetts Memorial Medical Center, established the defendant

as his primary care physician in December 2012. The plaintiff

had a long medical history of migraine headaches and had

previously been prescribed Percocet, in addition to other

medications, to treat this condition. The defendant referred

the plaintiff to a neurologist to treat his headaches. The

neurologist was concerned about the plaintiff's use of Percocet,

and, on the neurologist's recommendation, the defendant

formulated a plan to taper the plaintiff's use of opioids by ten

percent each month.

The plaintiff was initially compliant with this plan and

nearly ceased the use of opioids, but, on May 30, 2014, injured

his back and reported severe pain and difficulty walking. The

defendant prescribed him Percocet for use over the weekend and

scheduled a follow-up appointment for the following week. At

5 As "health care providers," both are required to comply
with the terms of G. L. c. 112, § 5, which addresses medical
licensure and the investigation and reporting of licensed
physicians for wrongdoing. This issue is further discussed
infra.
4

that appointment, on June 2, the plaintiff reported that his

back pain persisted, and that the Percocet was helping to

alleviate that pain. As a result, he continued taking Percocet

under the supervision of the defendant.

On July 1, 2014, the plaintiff and his wife suffered carbon

monoxide poisoning when the plaintiff left his car running in

his home garage for several hours. They were discovered,

unresponsive, by their son but recovered after being treated by

emergency medical personnel and transported to Massachusetts

General Hospital. The defendant learned of the incident after

reading about it in a newspaper and contacted the plaintiff on

July 3 to ask if he had attempted suicide. The plaintiff stated

that he had not, claiming that he had been in a hurry to get

inside the house due to his severe back pain and that, in his

haste, he had accidentally left the car running.

On July 16, 2014, the plaintiff attended a follow-up

appointment with the defendant. The two discussed the

plaintiff's back pain and his carbon monoxide poisoning. The

plaintiff also informed the defendant that he planned to open

his own medical practice on August 4. During their discussion,

the defendant told the plaintiff that he appeared less focused

than usual and that the defendant was concerned about the

plaintiff's ability to function at the highest levels. The

defendant further advised the plaintiff that he should not
5

perform surgery while on his then-current prescription regimen.

Although the plaintiff did not acknowledge the defendant's

concern about his level of focus during the appointment, the

plaintiff agreed that he would not perform surgery while using

opioids.

A few days later, on July 20, the defendant sent an e-mail

message to the plaintiff reiterating the defendant's concern

about the plaintiff's use of narcotics and plan to begin

treating patients while continuing to take Percocet and other

prescription medication. The defendant also informed the

plaintiff that the defendant would be mandated to report the

plaintiff to the Board of Registration in Medicine (board) if

the defendant felt that the plaintiff was practicing while

impaired and advised him that he should stop patient contact.

The plaintiff responded, inter alia, that he had seen patients

in the past without issue while prescribed Percocet, and that he

did not take Percocet before performing surgery while under the

care of his previous doctors.

Separately, the defendant spoke with the risk management

department at his place of work about his legal obligation to

report the plaintiff to the board in the event that the

defendant suspected the plaintiff was treating patients while

impaired. Thereafter, the defendant contacted PHS and spoke

with Dr. Steven Adelman, a PHS physician, about his concerns
6

regarding the plaintiff. Dr. Adelman agreed to see the

plaintiff for an evaluation regarding his use of opioids.

Later the same day, the defendant called the plaintiff to

inform him about the defendant's contact with PHS and his

conversation with Dr. Adelman. The plaintiff was surprised and

continued to disagree with the defendant's assessment that he

was unfit to treat patients while on his current course of

medication. Nevertheless, he agreed to meet with Dr. Adelman,

and the defendant did not report him to the board at that time.

After meeting with the plaintiff, Dr. Adelman recommended

that the plaintiff voluntarily stop treating patients and enter

inpatient treatment for opioid addiction. Dr. Adelman informed

the plaintiff that if he did not agree to go into treatment, Dr.

Adelman would inform the defendant, who would then call the

board. Although the plaintiff was reluctant to do so, he

complied. He attended inpatient treatment at the Caron

Comprehensive Addiction Treatment Center in Pennsylvania (Caron)

for six days, from August 3 to August 8, 2014. On his

discharge, Caron recommended that the plaintiff not practice

medicine prior to obtaining further treatment and that he

discontinue the use of certain narcotics.6 Furthermore, PHS

recommended that the plaintiff attend additional treatment at

6 The plaintiff was advised to discontinue all opioids,
acetaminophen, and triptans.
7

Shands Vista Hospital in Florida, which he did from September

through November 2014. The plaintiff returned to practicing

medicine in early 2015, subject to certain conditions imposed by

PHS.

The plaintiff filed the underlying complaint in June 2017,

alleging negligence, interference with advantageous business

relations, violation of the Massachusetts Civil Rights Act, and

invasion of privacy. The defendant filed a motion to dismiss

the latter three counts pursuant to the anti-SLAPP statute,

G. L. c. 231, § 59H, on December 1, 2017. A Superior Court

judge allowed that motion on March 30, 2018. The defendant

subsequently moved for summary judgment on the remaining count

of negligence, and the judge allowed that motion on July 29,

2021. The plaintiff timely appealed.

Discussion. 1. Anti-SLAPP. The plaintiff argues that the

judge erred in concluding that the defendant's activities were

protected as petitioning activity under G. L. c. 231, § 59H. He

asserts that the defendant's communication with PHS was

insufficiently connected to speech targeting the government as

to be protected under the anti-SLAPP statute. He further argues

that, without a pending governmental proceeding pertaining to

him, the defendant's speech could not have constituted protected

petitioning activity. We disagree.
8

General Laws c. 231, § 59H, protects defendants against

litigation intended to chill the legitimate exercise of their

right to petition the government. See Duracraft Corp. v. Holmes

Prods. Corp., 427 Mass. 156, 161 (1998) (Duracraft). "Under

G. L. c. 231, § 59H, a party may file a special motion to

dismiss if the civil claims . . . against it are based solely on

its exercise of the constitutional right to petition" (quotation

and citation omitted). Nyberg v. Wheltle, 101 Mass. App. Ct.

639, 645 (2022). The Duracraft framework is used to evaluate

the motion, see Nyberg, supra, and requires that "[a]t the first

stage, a special movant must demonstrate that the nonmoving

party's claims are solely based on its own petitioning

activities." Blanchard v. Steward Carney Hosp., Inc., 477 Mass.

141, 159 (2017) (Blanchard I). See Duracraft, supra at 167-168.

"At the second stage, if the special movant meets [the first

stage] burden, the burden will shift . . . to the nonmoving

party." Blanchard I, supra. From there, the nonmoving party

may prevail by (1) "demonstrating that the special movant's

petition activities upon which the challenged claim is based

lack a reasonable basis in fact or law . . . and that the

petitioning activities at issue caused it injury," or (2) "by

demonstrating . . . that each challenged claim does not give
9

rise to a 'SLAPP' suit."7 Id. at 159-160. The second stage of

the Duracraft framework is not at issue here because the

plaintiff on appeal challenges only the judge's determination

regarding the first stage.

Here, the defendant's communication with PHS qualifies as

protected petitioning activity under G. L. c. 231, § 59H. See

North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452

Mass. 852, 862 (2009) ("Statements made outside any formal

governmental proceedings have often been considered petitioning

activity"). General Laws c. 112, § 5F, requires peer reporting

to the board in situations where there is a reasonable basis to

believe that a physician is in violation of the statute or

regulations of the board, except where prohibited by law. See

G. L. c. 112, § 5F ("Any health care provider . . . shall report

to the board any person who there is reasonable basis to believe

is in violation of . . . any of the regulations of the board,

except as otherwise prohibited by law"). See also 243 Code

Mass. Regs. § 2.14(4)(a) (2012) ("A doctor of medicine . . .

7 Parties can show that a claim does not give rise to a
SLAPP suit by "establish[ing], such that the motion judge may
conclude with fair assurance, that its primary motivating goal
in bringing its claim, viewed in its entirety, was 'not to
interfere with and burden defendants' . . . petition rights, but
to seek damages for the personal harm to [it] from [the]
defendants' alleged . . . [legally transgressive] acts.'"
Blanchard I, 477 Mass. at 160, quoting Sandholm v. Kuecker, 2012
IL 111443, ¶ 57.
10

must report to the [b]oard when he or she has a reasonable basis

to believe that a physician may have violated . . . any

regulation of the [b]oard").8 As licensed physicians, both the

plaintiff and defendant were subject to this requirement. See

G. L. c. 112, § 5F. An exception exists where, inter alia, a

physician impaired by drugs or alcohol is in compliance with a

treatment program. See 243 Code Mass. Regs. § 2.07(23) (2012).

PHS is a nonprofit corporation founded by the Massachusetts

Medical Society to address issues of physician health and is

recognized by the board as a drug and alcohol treatment program

under 243 Code Mass. Regs. § 2.07(23). The defendant informed

PHS of his concerns regarding the plaintiff with the implicit

understanding that the communication to PHS would, by law, reach

the board if the plaintiff did not comply with the treatment

plan created by PHS. See G. L. c. 112, § 5F. Therefore,

although the defendant did not petition a governmental agency

directly, he did so indirectly, albeit conditionally, via his

communication with PHS. In these circumstances, such an

indirect communication is shielded by G. L. c. 231, § 59H. See

Blanchard I, 477 Mass. at 149, quoting North Am. Expositions Co.

Ltd. Partnership, supra ("To fall under the 'in connection with'

definition of petitioning under the anti-SLAPP statute, a

8 We cite throughout to the version of the regulations in
effect at the time of the underlying events in this case.
11

communication must be 'made to influence, inform, or at the very

least, reach governmental bodies -- either directly or

indirectly'"). The judge did not err in allowing the special

motion to dismiss.

2. Negligence. The plaintiff argues that summary judgment

should not have been entered on his negligence claim because

(1) the defendant was not entitled to a conditional privilege

under G. L. c. 112, § 5G (a), for reports made to PHS, and

(2) disputed issues of material fact exist with respect to the

breach of the standard of care and causation. In response the

defendant asserts, broadly, that the motion judge was correct in

allowing the motion for summary judgment and dismissing the

claim because the immunity provision of G. L. c. 112, § 5G (a),

applies. We agree with the defendant and conclude that he is

immune from claims arising from his communication with PHS under

G. L. c. 112, § 5G (a).

As the Supreme Judicial Court stated in Drakopoulos v. U.S.

Bank Nat'l Ass'n, 465 Mass. 775, 777-778 (2013),

"In considering a motion for summary judgment, we review
the evidence and draw all reasonable inferences in the
light most favorable to the nonmoving party. Because our
review is de novo, we accord no deference to the decision
of the motion judge. The defendants, as the moving
parties, have the burden of establishing that there is no
genuine issue as to any material fact and that they are
entitled to judgment as a matter of law. Once the moving
party establishes the absence of a triable issue, the party
opposing the motion must respond and allege specific facts
12

establishing the existence of a material fact in order to
defeat the motion." (Quotations and citations omitted.)

We turn first to the question of the defendant's asserted

immunity under G. L. c. 112, § 5G (a), which provides in part

that

"[n]o person or health care provider who communicates with
a peer review committee, administrative subcommittee,
ethics committee or other similar committee of a health
care provider, [or] professional society of health care
providers . . . shall be liable in any cause of action
arising out of the providing . . . of such communication
provided that such person or health care provider acts in
good faith and with a reasonable belief that such
communication was warranted in connection with or in
furtherance of the functions of such committee."

"In interpreting similar qualified immunities and privileges,

Massachusetts decisions are uniform in holding that, once

immunity has been invoked, the burden of overcoming the immunity

rests exclusively with the plaintiff." Maxwell v. AIG Dom.

Claims, Inc., 460 Mass. 91, 104 (2011).

Here, we conclude that the defendant was entitled to

qualified immunity under G. L. c. 112, § 5G (a), with respect to

any claim arising from his communication with PHS.9 As a

nonprofit corporation founded by the Massachusetts Medical

Society to address issues of physician health, including the

We note that G. L. c. 112, § 5G (b), creates immunity for
9

any person making a report to the board, which was the
alternative proposed by the defendant had the plaintiff not
accepted treatment under the terms set by PHS.
13

treatment of addiction, PHS is a peer review committee within

the meaning of G. L. c. 112, § 5G (a). See G. L. c. 111, § 1

(defining medical peer review committee). It follows,

therefore, that the defendant's communication to PHS regarding

his concern about the plaintiff is protected unless the

plaintiff can show either that the defendant failed to act in

good faith or that he had no reasonable belief that the

communication furthered the purpose of PHS.10 See G. L. c. 112,

§ 5G (a). We examine each in turn.

First, the plaintiff argues that he raised a triable issue

concerning the defendant's good faith based on the affidavit the

plaintiff submitted in connection with his opposition to the

motion for summary judgment. Specifically, he asserts that the

defendant falsified the medical record concerning the

plaintiff's July 16, 2014 appointment in order to suggest that

the plaintiff's abuse of prescription narcotics had been

discussed during that appointment when, in fact, no such

discussion had occurred. The plaintiff posits that the

defendant falsified the record in order to avoid any potential

10The Supreme Judicial Court has defined good faith in
other contexts as "an honest belief, the absence of malice, or
the absence of a design to defraud or to seek an unconscionable
advantage over another." Carey v. New England Organ Bank, 446
Mass. 270, 282 (2006). See Pardo v. General Hosp. Corp., 446
Mass. 1, 11-12 & nn.23 & 24 (2006).
14

liability for his own prescribing practices.11 However, the

plaintiff's affirmative assertion in his affidavit that no

discussion regarding his impairment occurred conflicted with his

prior deposition testimony, in which he stated that he could not

recall how many times he discussed the issue of impairment with

the defendant and that he was unsure whether the conversation

occurred at all. The plaintiff could not create a dispute of

fact by contradicting his own previous sworn testimony. See

Phinney v. Morgan, 39 Mass. App. Ct. 202, 207 (1995) ("The

plaintiff['s] affidavit[] . . . cannot be used to contradict

previous statements made by the plaintiff[] under oath in order

to create a material issue of fact to defeat summary judgment").

See also O'Brien v. Analog Devices, Inc., 34 Mass. Appt Ct. 905,

906 (1993) ("a party cannot create a disputed issue of fact by

the expedient of contradicting by affidavit statements

previously made under oath at a deposition").

Next, the plaintiff has failed to identify a genuine

factual dispute that the defendant's communication with PHS was

11 The plaintiff also argues that the development of the
defendant's concern following an incident interpretable as a
possible suicide attempt is "[c]ircumstantially . . . probative
of a design to protect" the defendant against liability.
However, assuming without deciding that liability exists, the
plaintiff has not identified any way in which feigned concern
would mitigate such liability. The plaintiff's proposed
inference is therefore unreasonable. See Drakopoulos, 465 Mass.
at 777.
15

not warranted in connection with or furtherance of a function of

PHS. The undisputed record shows that PHS is a service intended

to, inter alia, aid doctors struggling with substance use

disorder. The record is replete with evidence of the

plaintiff's history of opioid dependence at a time when he

intended to start a new medical practice that would include

surgery. The plaintiff's reliance on opioids was so serious

that it had led the plaintiff to leave his car running inside

his garage, resulting in carbon monoxide poisoning of him and

his wife. Furthermore, the defendant had observed the

plaintiff's demeanor and apparent confusion during the July 16

appointment. On the summary judgment record, the plaintiff has

raised no triable issue of fact concerning whether the defendant

lacked a reasonable basis to believe that the plaintiff was

dependent on drugs such that a report would be required. See

243 Code Mass. Regs. § 2.07(23). The plaintiff persists in his

assertion that his affidavit opposing summary judgment was

sufficient to create a dispute as to the defendant's genuine

purpose in referring the plaintiff to PHS. As discussed supra,

the motion judge did not err in declining to consider the

affidavit to the extent that it contradicted the plaintiff's

earlier sworn deposition testimony. See Phinney, 39 Mass. App.

Ct. at 207.
16

Absent the contradictions in the plaintiff's affidavit, the

remaining evidence supports the conclusion that the defendant's

decision to refer the plaintiff was reasonable within the

meaning of the immunity provision of G. L. c. 112, § 5G (a).

See Knight v. Board of Registration in Med., 487 Mass. 1019,

1023 (2021) (suspension of medical license upheld where, inter

alia, physician practiced medicine while impaired).

Our conclusion that the defendant is immune from liability

under G. L. c. 112, § 5G (a), extends to all theories of

liability on which the plaintiff's negligence claim is based,

including that the defendant committed a breach of the standard

of care by referring the plaintiff to PHS instead of personally

continuing to treat his use of painkillers.

3. Fees. The defendant requests that we award attorney's

fees for defending this appeal related to the special motion to

dismiss. General Laws c. 231, § 59H, provides for the mandatory

award of attorney's fees, and that provision "would ring hollow

if it did not necessarily include a fee for the appeal."

McLarnon v. Jokisch, 431 Mass. 343, 350 (2000), quoting Yorke

Mgt. v. Castro, 406 Mass. 17, 19 (1989). Accordingly, the

defendant may seek reasonable appellate attorney's fees and

costs for defending counts II through IV in accordance with the

procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11

(2004). See Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App.
17

Ct. 259, 268-269 (2007). The defendant "may file [his]

application for fees and costs, with any appropriate supporting

materials, with the clerk of the [Appeals Court] within fourteen

days of the date of the rescript." Fabre, supra at 11. The

plaintiff may respond to the petition within fourteen days of

said filing.

Judgment affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9401839. Public record. Not legal advice.