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Argereow v. Weisberg

Superior Court of Maine, Cumberland

December 21, 2017

PAMELA G. ARGEREOW, Plaintiff
v.
VERNE M. WEISBERG, M.D. and MERCY HOSPITAL, Defendants.

          ORDER ON DEFENDANT MERCY HOSPITAL'S MOTION TO DISMISS SECOND AMENDED COMPLAINT

          Lance E. Walker, Justice.

         Before the Court is Defendant Mercy Hospital's ("Mercy") motion to dismiss Plaintiffs second amended complaint pursuant to Maine Rule of Civil Procedure 12(b)(6). A hearing was held on this motion on September 6, 2017. For the following reasons, Mercy's motion is granted.

         I. Background

         The facts relevant to this motion are largely contained in the Court's order on Dr. Weisberg's motion to dismiss Plaintiffs first amended complaint. See Argereow v. Weisberg, 2016 Me. Super. LEXIS 96 (May 10, 2016). Since the issuance of the Court's May 10, 2016 order, Plaintiff has filed a second amended complaint which, inter alia, adds Mercy as a defendant. Specifically, Plaintiff adds Mercy to the existing claims against Dr. Weisberg for intentional infliction of emotional distress and violation of the Maine Whistleblower Protection Act, and Plaintiff alleges a cause of action against Mercy entitled "Maine Health Security Act Request for Access to Professional Competence Review Records and for Abuse of Any Privilege." (Second Am. Compl. Count II, Count VI, Count VII.)

         II. Standard of Review

         The court grants a dismissal when the complaint fails "to state a claim upon which relief can be granted." M.R. Civ. P. 12(b)(6). A motion to dismiss for failure to state a claim tests the legal sufficiency of a complaint. State v. Weinschenk, 2005 ME 28, ¶ 10, 868 A.2d 200. The sufficiency of a complaint is a question of law. Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. On a motion to dismiss for failure to state a claim, the facts are not adjudicated. Marshall v. Town of Dexter, 2015 ME 135, ¶ 2, 125 A.3d 1141. The court reviews the material allegations in the complaint in the light most favorable to the plaintiff to determine whether the plaintiff would be entitled to relief pursuant to some legal theory. Bean, 2008 ME 18, ¶ 7, 939 A.2d 676. Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that the plaintiff might prove in support of his or her claim. Id.

         III. Discussion

         A. Statutory immunity

         Mercy first argues that it has immunity from civil liability under 24 M.R.S. § 2511. That statute states:

Any person acting without malice, any physician, podiatrist, health care provider, health care entity or professional society, any member of a professional competence committee or professional review committee, any board or appropriate authority and any entity required to report under this chapter are immune from civil liability:
1. Reporting. For making any report or other information available to any board, appropriate authority, professional competence committee or professional review committee pursuant to law;
2. Assisting in preparation. For assisting in the origination, investigation or preparation of the report or information described in subsection 1; or
3. Assisting in duties. For assisting the board, authority or committee in carrying out any of its duties or functions provided by law.

24 M.R.S. ยง 2511. Mercy contends subsections 2 and 3 grant it immunity for processing any information it may have received from Dr. Weisberg during the credentialing process. As Mercy is indisputably a health care entity, it is eligible for immunity as a matter of law for any action described by ...


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