PAMELA G. ARGEREOW, Plaintiff
VERNE M. WEISBERG, M.D. and MERCY HOSPITAL, Defendants.
ORDER ON DEFENDANT MERCY HOSPITAL'S MOTION TO
DISMISS SECOND AMENDED COMPLAINT
E. Walker, Justice.
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
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.)
Standard of Review
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
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. § 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