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Argereow v. Weisberg

Supreme Court of Maine

October 16, 2018


          Argued: July 18, 2018

          Robert W. Kline, Esq. (orally), Kline Law Offices LLC, Portland, for appellant Pamela G. Argereow

          Joanne I. Simonelli, Esq. (orally), and Frederick B. Finberg, Esq., The Bennett Law Firm, PA, Portland, for appellee Verne M. Weisberg, M.D.

          Thad B. Zmistowski, Esq. (orally), and Ryan P. Dumais, Esq., Eaton Peabody, Bangor, for appellee Mercy Hospital


          HJELM, J.

         [¶1] Pamela G. Argereow commenced this action against Dr. Verne M. Weisberg and Mercy Hospital, alleging that Weisberg communicated with someone at Mercy about Argereow's professional background and that, as a result, Mercy did not follow through with its decision to employ her. Argereow-a former employee at one of Weisberg's medical offices-alleges that Weisberg's statements to Mercy were retaliatory because, in an administrative proceeding, she had testified adversely to the interests of another of Weisberg's clinics. The Superior Court (Cumberland County, L. Walker, J.) granted Weisberg's and Mercy's separate motions to dismiss the complaint for failure to state claims on which relief could be granted, see M.R. Civ. P. 12(b)(6), because some counts were legally insufficient and other counts failed due to the absolute immunity provisions of the Maine Health Security Act, 24 M.R.S. §§ 2501-2988 (2017). Argereow challenges these determinations on this appeal. We correct one aspect of the judgment and affirm.

         I. BACKGROUND

         [¶2] Because this appeal is based on a facial review of the complaint, we consider only the alleged facts, which we take as true, see Lalonde v. Cent. Me. Med. Ctr., 2017 ME 22, ¶ 2, 155 A.3d 426, and "examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶¶ 7-8, 843 A.2d 43 (quotation marks omitted).

         [¶3] Between February of 2012 and October of 2014, Argereow worked as a nurse practitioner at a medical practice that Weisberg owns and operates. Argereow began seeking other employment, including at Mercy, in the summer of 2014. She disclosed in an online application for Mercy that she had consented to a professional reprimand in 2005 because in 2003 she falsely indicated on a checklist that during a medical procedure a surgical team had completed a step that it had not taken.

         [¶4] On September 23, 2014, Argereow testified under subpoena at a hearing concerning an unemployment claim brought by a former employee of another clinic owned and operated by Weisberg. On October 1, the Unemployment Commission administrative hearing officer, citing Argereow's testimony, issued an order favorable to the former employee and allowed benefits, which were "chargeable" to Weisberg's clinic.

         [¶5] On the same day as the unemployment hearing, Mercy sent Argereow a written offer for her to work as a nurse practitioner at one of its clinics. On October 6, Argereow underwent a pre-placement screening, resulting in her approval for employment at Mercy without restrictions, and received Mercy's employee handbook. Her projected start date was November 10, 2014.

         [¶6] On October 15, Argereow informed Weisberg that she was leaving her job at his practice and that her last day there would be October 29. Weisberg learned from Argereow on October 31 that she would be working for Mercy. Sometime, "likely" during the ensuing week, Weisberg "or someone on his behalf" "made a phone call [to someone at Mercy] and cost [Argereow] her job at Mercy" because of her testimony at the unemployment claim hearing. The information conveyed by Weisberg during the phone call concerned Argereow's "professional background" and her "employment qualifications or performance," and suggested that she was "incompetent in her professional practice." Argereow's complaint contains no further allegations about what the caller allegedly said during the phone call, who made the call, [1] to whom the call was made, or when the call was made. Weisberg's statements had "the effect of discouraging Mercy from employing [Argereow]."

         [¶7] On November 7, a human resources employee at Mercy advised Argereow that her "projected start date was being pushed back on the basis that there were potential issues associated with her medical credentialing." Although Mercy had not concluded the hiring process, Argereow "had already been introduced to the ... team as a new employee and understood that there were no remaining contingencies regarding her employment by Mercy and that all interviews had already taken place." At Mercy's request, however, Argereow met with its Chief of Surgery on November 7. After they discussed the reprimand on her nursing license, the physician expressed his appreciation for Argereow's candor concerning the incident and said he would "present this information to the Mercy Board the following week." During the meeting, the physician noted to Argereow that "a Dr. Weisberg, which could refer to Dr. Tracey Weisberg, [Dr. Verne M.] Weisberg's spouse, was a member of Mercy's Board or held a significant administration role."

         [¶8] On November 10, 2014, a Mercy representative called Argereow to suggest that she withdraw her credentialing application. Argereow then called the human resources department and was told to expect a call from another Mercy physician. That physician called Argereow the next day to warn her that if she "pursued her application, it would be denied on the basis that she did not qualify for credentialing and that this would constitute an event which would have to be reported to the Maine State Board of Nursing and which would impair her ability to find work elsewhere." Shortly thereafter, Argereow requested a copy of her employment application with Mercy and confirmed that she had "truthfully responded to all questions asked in conjunction with her initial online application." Nevertheless, Argereow withdrew her application for employment and credentialing with Mercy on November 13. On December 1, 2014, Argereow reviewed her Mercy credentialing file, "which did not contain any adverse information except a notation, without explanation, from [the Chief of Surgery] recommending against credentialing." As a result of Weisberg's and Mercy's conduct, she underwent marriage counseling because of stress and lost eight months of wages, which was a significant financial hardship.

         [¶9] In November of 2015, Argereow commenced this action, naming Weisberg as the sole defendant. In her complaint as amended, Argereow asserted claims for tortious interference with a prospective economic advantage, intentional infliction of emotional distress, defamation, negligent infliction of emotional distress, slander per se, and violation of the Whistleblower Protection Act (WPA), see 26 M.R.S. § 833(1)(C) (2017). Weisberg moved for the court to dismiss each count for failure to state a claim. The court granted the motion in part, dismissing without prejudice the claims for defamation, slander per se, and negligent infliction of emotional distress, but allowing Argereow to proceed on the other claims.[2]

         [¶10] During pretrial proceedings, Argereow served Mercy with a subpoena to obtain certain credentialing-related documents. After resulting motion practice involving Argereow and Mercy, the court issued an order protecting Mercy from producing some of that material. Argereow then filed a second amended complaint, which included all of the counts she had asserted against Weisberg, including the ones the court had dismissed, and added Mercy as a defendant and asserted claims against Mercy for intentional infliction of emotional distress and whistleblower retaliation, and a count seeking access to credentialing records in Mercy's possession.

         [¶11] Weisberg and Mercy filed separate motions to dismiss Argereow's second amended complaint. The court granted Dr. Weisberg's motion to dismiss the remaining counts against him based on its determination that he is entitled to immunity pursuant to 24 M.R.S. § 2511. The court granted Mercy's motion to dismiss, which was based on assertions that Mercy was statutorily immune, also pursuant to section 2511, and that Argereow's claims did not state a basis for relief The court "determined that Mercy is not unquestionably entitled to immunity" but granted the motion because the claims against Mercy did not state claims for relief. Argereow filed a notice of appeal, [3] and Mercy filed a cross-appeal to preserve the argument that its motion to dismiss should have been granted based on section 2511 immunity.[4] See M.R. App. P. 2B(c), 2C(a).


         [¶12] When we review an order dismissing a complaint, we consider only the facts alleged in the complaint and "examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Moody, 2004 ME 20, ¶¶ 7-8, 843 A.2d 43 (quotation marks omitted). This is a process that "tests the legal sufficiency of the allegations in a complaint, not the sufficiency of the evidence the plaintiffs are able to present." Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993) (citation omitted). Dismissal of a complaint "should only occur when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." Potter, Prescott, Jamieson & Nelson, PA. v. Campbell, 1998 ME 70, ¶ 5, 708 A.2d 283 (quotation marks omitted).

         [¶13] We first address Weisberg's immunity from Argereow's claims against him, and we then address the sufficiency of the allegations in Argereow's two remaining counts against Mercy.

         A. Physician Immunity

         [¶14] The claims that Argereow continues to pursue against Weisberg are for tortious interference with an economic advantage, intentional infliction of emotional distress, and violation of the Whistleblower Protection Act.[5]

         [¶15] Immunity is an affirmative defense because it is a legal doctrine of avoidance of liability. See M.R. Civ. P. 8(c). A defendant may raise immunity as the ground for dismissal of a claim for failure to state a basis for relief.[6] Lalonde, 2017 ME 22, ¶ 11, 155 A.3d 426. When a party seeks dismissal of a claim based on an affirmative defense, the relevant inquiry is whether the "facts giving rise to the defense appear on the face of the complaint." Shaw v. S. Aroostook Cmty. Sch. Dist, 683 A.2d 502, 504 (Me. 1996); see M.R. Civ. P. 12.

         [¶16] Section 2511 of the Maine Health Security Act (MHSA) grants immunity from civil liability as follows:

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 ...

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