Case summary
Maine supreme court upholds immunity for CVO questionnaire
The Supreme Judicial Court of Maine (the "Court") upheld a superior court’s ruling granting immunity to two physicians who provided negative comments regarding a third physician when they responded to a questionnaire from a credentials verification organization (CVO).
The decision stems from a dispute where Kevin F. Strong, MD, sought damages from Rebecca M. Brakeley, MD, and Jonathan M. Bausman, MD, alleging defamation and tortious interference with his business relationship with St. Mary’s Regional Medical Center in Lewiston, Maine.
In 2013, Strong applied for staff privileges at St. Mary’s, which reached out to its contracted CVO, Synernet, to collect, verify, and dispense Strong’s credentialing information. Synernet sent professional reference questionnaires to Brakeley and Bausman, who completed and returned them. Synernet forwarded the responses to St. Mary’s, which ultimately chose to deny staff privileges to Strong. Strong subsequently filed his complaint in the superior court against Brakeley and Bausman, claiming the denial was a result of negative comments in their questionnaires.
In court, Brakeley and Bausman argued that their statements were entitled to absolute immunity pursuant to Section 2511 of the Maine Health Security Act and filed a motion for summary judgment. The superior court granted the motion, and Strong appealed.
Strong made several arguments for why Brakeley and Bausman’s statements didn’t meet the criteria for immunity, but the Court rejected his interpretation of the statute.
In its decision to affirm the superior court’s summary judgment, the Court discussed the language of Section 2511 and its three subsections, which outline the circumstances when a physician is afforded immunity from civil liability, and why Strong’s interpretation was incorrect.
Central to Strong’s argument was Subsection 3 of the statute, which states that physicians "assisting the board, authority, or committee in carrying out any of its duties or functions provided by the law" are afforded immunity. Strong argued that Synernet was not a board, authority, or committee and therefore Brakeley and Bausman were not immune. However, the Court interpreted that subsection to include professional competence committees, which the Maine Health Security Act defines to include "[e]ntities and persons, including contractors, consultants, attorneys and staff, who assist in performing professional competence review activities."
Since St. Mary’s contracted with Synernet to collect, verify, and dispense credentialing information for its competence review process, the Court concluded Synernet qualified as a professional competence committee and therefore was a board, authority, or committee pursuant to the statute.
Strong also interpreted the language of Subsection 3 to mean that it only provided protection to a physician if he or she was a member of the board, authority, or committee. The Court found this interpretation illogical as it twisted the meaning of the subsection from protecting the acts of the physician providing assistance to instead protecting the committee receiving the assistance.
Source:
Strong v. Brakeley, Docket No. And-15-260 (Me. Apr. 21, 2016).
What does this decision mean for you?
J. Michael Eisner, Esq., of Eisner & Lugli in New Haven, Connecticut: If the Maine statute had provided conditional immunity—for example, immunity only if the physicians acted “without malice”—there would have been no summary judgment. Conditional immunity opens the door to plaintiffs’ lawyers almost always alleging malice, meaning that the cases go to court, to the detriment of the peer review process. Conditional immunity means that an inordinate amount of time, money, and emotional capital will be expended to defeat claims that almost always have no substance.
In connection with peer review and credentialing, there always should be absolute immunity whether in state law, such as here, or in releases permitting physicians to provide recommendations to peer review/credentialing committees.
In the rare situations where there is physician misconduct in providing a false recommendation, there always is recourse, whether by complaints to state boards of medical examiners, which have jurisdiction over physicians’ licenses, or to specialty certification bodies that provide board certification. Deliberately false statements could lead to loss of license or loss of specialty board certification.