Berk v. Kronlund

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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.