Berk v. Kronlund ( 2023 )


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    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.