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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 VERNE M. WEISBERG, M.D.'S MOTION TO DISMISS SECOND AMENDED COMPLAINT

          LANCE E. WALKER, JUSTICE.

         Before 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.

         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 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. ¶¶ 4, 44-46.)

         Following 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.)

         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

         The 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. ΒΆ 2) and therefore a physician, he is eligible for immunity as a matter of law for any action described by ...


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