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Strong v. Brakeley

Superior Court of Maine, Androscoggin

May 5, 2015

KEVIN F. STRONG, Plaintiff


MaryGay Kennedy Justice.

Before the court is the defendants' motion for summary judgment. Plaintiff Kevin Strong's complaint alleges that defendants made false and defamatory statements in response to questionnaires circulated by a company working on behalf of Strong's potential employer. His complaint includes three counts: (1) defamation, (2) tortious interference with a business relationship, and (3) punitive damages. Defendants argue that they are absolutely immune from suit under the Maine Health Security Act, 24 M.R.S. § 2511. For the following reasons, defendants' motion is granted.


Dr. Kevin Strong is a pediatric physician and previously worked at Central Maine Medical Center ("CMMC") with defendants Drs. Rebecca Brakeley and Jonathan Bausman, who are also pediatric physicians. (PL's Add. S.M.F. ¶¶ 43-44.) In January 2013, CMMC exercised its option to terminate Dr. Strong's contract for business reasons. (PL's Add. S.M.F. ¶ 47.) During Dr. Strong's subsequent job search, he used Dr. Brakeley as a reference, and she gave Dr. Strong a positive letter of recommendation. (PL's Add. S.M.F. ¶¶ 50-51.) In May 2013, Dr. Strong accepted a position with a private pediatric practice in Lewiston. (PL's Add. S.M.F. ¶¶ 52-53.) Dr. Strong then began the application process for obtaining privileges at St. Mary's Regional Medical Center and CMMC. (PL's Add. S.M.F. 53.)

Before Dr. Strong started working, he received a letter from an attorney at CMMC threatening legal action against him if he pursued private practice in Lewiston because of a non-compete clause in his former employment contract with CMMC. (PL's Add. S.M.F. ¶ 55.) After receiving this letter, Dr. Strong was notified by St. Mary's that it had concerns about two references that were received through an independent contractor that St. Mary's uses to obtain information required to process applications for staff privileges. (PL's Add. S.M.F. ¶ 56.) Synernet, the independent contractor, is a "credentials verification organization, which collects, verifies, and dispenses physician credentialing information" to its customers, which include hospitals. (Def/s Supp. S.M.F. ¶ 4.) St. Mary's contracted with Synernet to collect credentialing information, and Synernet collected information on Dr. Strong when he applied for staff privileges at St. Mary's. (Def.'s Supp. S.M.F. ¶ 5.)

In July 2013, Synernet sent Drs. Brakeley and Bausman "Professional Reference Questionnaires" as part of its effort to collect credentialing information about Dr. Strong.[1] (Def.'s Supp. S.M.F. ¶ 9.) The questionnaires stated that they were sent "to request your assistance in providing information which will assist medical staff leaders involved in making credentialing and privileging recommendations . . . ." (PL's Add. S.M.F. ¶ 20.) Drs. Brakeley and Bausman filled out the questionnaires and returned them to Synernet. (Def.'s Supp. S.M.F. ¶¶ 10-11.) Synernet then forwarded them to St. Mary's. (Def.'s Supp. S.M.F. ¶ 12.)

Dr. Strong obtained copies of the two references and was shocked to discover that they were from Drs. Brakeley and Bausman. (PL's Add. S.M.F. ¶ 57.) The references included allegations that Dr. Strong had poor basic medical and clinical knowledge, had poor availability and thoroughness of patient care, had poor relationships with physicians and other professional staff, had poor communication with patients and families, and had been the subject of disciplinary action. (PL's Add. S.M.F. ¶¶ 58, 60, 62-63.) Dr. Strong was eventually able to obtain privileges at St. Mary's but only after expending additional time, effort, and expense to correct the false statements provided in the questionnaires. (PL's Add. S.M.F. ¶ 67.)

Dr. Strong filed his complaint on October 15, 2013, which he amended on October 31, 2013. Defendants filed a motion to dismiss, which the court denied on December 17, 2013. The court limited discovery to issues related to whether the defendants are entitled to absolute immunity for their responses to the reference questionnaires under 24 M.R.S. § 2511. On December 22, 2014, defendants moved for summary judgment. The sole issue before the court is whether 24 M.R.S. § 2511 provides immunity to Drs. Brakeley and Bausman for their responses to the Synernet questionnaires.


1. Standard of Review

"Summary judgment is appropriate if the record reflects that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Dussault v. RRE Coach Lantern Holdings, LLC, 2014 ME 8, ¶ 12, 86 A.3d 52 (quoting F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646). "A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact-finder to choose between competing versions of the fact." Mcllroy v. Gibson's Apple Orchard, 2012 ME 59, ¶ 7, 43 A.3d 948 (quoting N. E. Ins. Co. v. Young, 2011 ME 89, ¶ 17, 26 A.3d 794). "Even when one party's version of the facts appears more credible and persuasive to the court, any genuine factual dispute must be resolved through fact-finding, regardless of the nonmoving party's likelihood of success." Lewis v. Concord Gen. Mut. Ins. Co., 2014 ME 34, ¶10, 87 A.3d 732. If facts are undisputed but nevertheless capable of supporting conflicting, plausible inferences, "the choice between those inferences is not for the court on summary judgment." Id.

2. Immunity Under 24 M.R.S. 2511

a. Absolute vs. Conditional Privilege

Defendants argue that the basis for Dr. Strong's complaint, defendants' responses to the reference questionnaires are absolutely privileged, and they are therefore entitled to judgment ...

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