Workforce Vitality
WORCESTER MEDICINE
Legal Consult: Objection to Impaired Physician Reporting Slapp’ed Down
Peter J. Martin, Esq.
Josh Lewin, Esq.
T
he stress of practicing medicine sometimes manifests in substance use disorders. Recognizing this reality, in Massachusetts a system for reporting impaired physicians, including diverting them to a treatment program prior to referring them to the Board of Registration in Medicine (“Board”), has been created. The Massachusetts Medical Society, in turn, created Physicians Health Services, Inc. (“PHS”), a non-profit corporation founded to address physician health. While the applicable regulations create a requirement for physicians to report to the Board other physicians who are reasonably believed to be practicing medicine in violation of law, including while addicted to or impaired by drugs or alcohol, an exception exists if the physician impaired by drugs or alcohol is in compliance with a treatment program such as those offered by PHS. A recent appellate court decision, Berk v. Kronlund,[1] discussed protections afforded physicians who report or refer an impaired colleague to PHS, citing a statute designed to protect citizens’ first amendment rights to petition the government. While not potentially the final statement of the law on this issue, the decision does strengthen physician reporters’ protections and immunities from lawsuits by their allegedly impaired colleagues for raising such reports. The parties to the lawsuit were both physicians, with Dr. Kronlund being Dr. Berk’s primary care physician. The Dr. Kronlund became concerned about Dr. Berk’s ongoing use of opioids, and both agreed to a plan to taper Dr. Berk’s use of opioids by ten percent per month. Dr. Berk was compliant with this plan until a subsequent back injury resulted in a short-term plan to prescribe Percocet. Approximately one month later, Dr. Berk and his wife were found unresponsive in Dr. Berk’s garage due to accidental carbon monoxide exposure. Shortly thereafter, Dr. Berk informed Dr. Kronlund that he intended to open a medical practice that would involve surgery. Dr. Kronlund informed Dr. Berk of his concerns about Dr. Berk’s performing surgery
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while using opioids. Dr. Kronlund also told Dr. Berk he would be required to report Dr. Berk to the Board if Dr. Kronlund felt that Dr. Berk was practicing while impaired. Dr. Berk responded that he had seen patients in the past while prescribed Percocet and that he did not take Percocet prior to performing surgery while under the care of previous doctors. Dr. Kronlund then contacted PHS, and a PHS physician agreed to see Dr. Berk for an evaluation. Dr. Berk did see the PHS physician who recommended that Dr. Berk go into inpatient treatment for opioid addiction, and that if Dr. Berk did not, the PHS physician would inform Dr. Kronlund, who would then report Dr. Berk to the Board. Dr. Berk did attend two inpatient treatment programs over the next several months, and then returned to the practice of medicine under certain PHS conditions. Two years later, Dr. Berk sued Dr. Kronlund for reporting him to PHS, asserting four claims: (1) negligence; (2) interference with advantageous business relations; (3) violation of the Massachusetts Civil Rights Act; and (4) invasion of privacy. The gravamen of the lawsuit was that Dr. Berk had suffered business losses and other damages as a result of Dr. Kronlund reporting his suspected opioid addiction to PHS. The first claim was dismissed on the ground that the so-called “peer review privilege” conferred on physicians by Massachusetts General Laws chapter 112, section 5G(a) which protects physicians who report to peer review committees in good faith and with a reasonable belief that such communication was warranted. This dismissal was upheld on appeal, with a finding that PHS qualified as a peer review committee and a determination that Dr. Kronlund had ample grounds for reporting Dr. Berk to PHS. As to the other three claims, Dr. Kronlund made a special motion to dismiss under the Massachusetts “anti-SLAPP” statute, M.G.L. chapter 231, section 59H. This statute is so-called because it protects litigants against Strategic Lawsuits Against Public Participation. It was designed to protect citizens from being sued for the “valid exercise of their constitutional rights of freedom of speech and petition for the redress of grievances [1].” To discourage these types of lawsuits, the anti-SLAPP statute enables defendants to seek an immediate dismissal and mandates an award of attorney’s fees if dismissal is granted. Under the Anti-SLAPP law, protected petitioning activity is defined very broadly, to include any oral or written statements submitted to or “in connection with” any governmental
