PAMELA G. ARGEREOW, Plaintiff
VERNE M. WEISBERG, M.D. and MERCY HOSPITAL, Defendants.
ORDER ON DEFENDANT VERNE M. WEISBERG, M.D.'S
MOTION TO DISMISS SECOND AMENDED COMPLAINT
E. WALKER, JUSTICE.
the Court is Defendant Verne M. Weisberg, M.D.'s
("Dr. Weisberg") 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, Dr.
Weisberg's motion is granted.
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 Hospital ("Mercy") as a
defendant and alleges that Dr. Weisberg or someone acting on
his behalf abused any conditional privilege afforded by 24
M.R.S. § 2511 by contacting Mercy to comment on
Plaintiffs professional background, thereby discouraging
Mercy from hiring Plaintiff. (Second Am. Compl. ¶¶
the Court's order on the original motion to dismiss, the
remaining claims against Dr. Weisberg include interference
with prospective economic advantage, intentional infliction
of emotional distress, and violation of the Maine
Whistleblower Protection Act. Dr. Weisberg contends these
claims must be dismissed because the Maine Health Security
Act, 24 M.R.S. § 2511, grants him absolute immunity from
civil liability. (Mot. Dismiss 2.) He further asserts that
the previously-dismissed claims for defamation, negligent
infliction of emotional distress, and slander per se are
likewise barred by § 2511 and, therefore, the entirety
of Plaintiffs second amended complaint should be dismissed
with prejudice. (Id. n.2.)
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
Maine Health Security Act provides:
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. Dr. Weisberg contends subsection 1 and
3 grant him immunity for any comments he may have made to
Mercy. As there is no dispute that Dr. Weisberg is a medical
doctor (see Second Am. Compl. ¶ 2) and
therefore a physician, he is eligible for immunity as a
matter of law for any action described by ...