Legal Consult: Objection to Impaired Physician Reporting Slapp’ed Down

Peter J. Martin, Esq. & Josh Lewin, Esq.

The 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 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 proceeding, or any written or oral statements that are “reasonably likely to encourage” review of any issue by the government, or any other statement that falls within the constitutional right to petition government. The definition of petitioning activity is so broad that it has been interpreted to include even indirect petitioning activity: “Petitioning includes all ‘statements made to influence, inform, or at the very least, reach governmental bodies— either directly or indirectly [1].’” To these writers’ knowledge, it has never been used to protect the statements of a physician reporting an allegedly impaired physician either to the Board or to PHS.

But the Courts had previously ruled that statements made by medical professionals in connection with matters under review by state regulators to constitute “petition activity” covered by the Anti-SLAPP law. In Blanchard v. Steward Carney Hospital, Inc., the Massachusetts Supreme Judicial Court held that statements by the hospital’s president to the Boston Globe about firings at a hospital unit made while the Massachusetts Department of Mental Health was considering revoking that unit’s license were covered [1]. The Court ruled that the hospital president’s comments to the Boston Globe, though not made directly to DMH, “had a plausible nexus to DMH’s investigation based on their content and the high likelihood that they would influence or at least reach DMH [1].” Thus, this indirect communication constituted protected petitioning activity under the anti-SLAPP statute.

In Berk v. Kronlund, the issue to be decided was whether the reporting physician’s statements to PHS—which is not a government body— could constitute petitioning activity. While it appears clear that a report to the Board would be protected, PHS is a non-profit private corporation and, at the time the report to PHS was made, no government proceedings were pending. Still, the Massachusetts Appeals Court relied on the broad definitions given to petitioning activity in prior cases and concluded that the report to PHS qualified as protected petitioning activity because Dr. Kronlund “informed PHS of his concerns regarding the plaintiff with the implicit understanding that the communication to PHS would, by law, reach the Board if the plaintiff did not comply with the treatment plan created by PHS.” Dr. Kronlund’s communications with PHS were thus protected under the Anti-SLAPP law. This is the case even though there was never any proceeding pending at the Board, no report was ever made to the Board, and there was no government involvement in the matter at all. Dr. Kronlund was awarded his attorney’s fees for having to defend the lawsuit.

This decision under the anti-SLAPP statute appears uncontroversial. If a hospital president’s statements to the press can be protected under that statute because the statements are intended to influence the outcome of a DMH investigation, how much more readily would the contact with a treatment program that acts as an exception to the mandated reporting requirement to the Board be considered to be “in connection with” a governmental proceeding? The decision in Berk v. Kronlund is an important affirmation of the protections for physicians making the difficult decision to report an impaired colleague who may be suffering from drug or alcohol abuse. The Court’s decision makes certain that the Anti-SLAPP law and peer review privilege will protect physicians who make good faith reports or referrals to PHS as an alternative to making a report to the Board. While physicians may be more reluctant to make a report to the Board in light of the serious and devastating consequences that could befall the suffering physician as a result, this case ensures that physicians can feel secure in making a referral to PHS as an alternative without the risk of being sued by the addicted doctor as a result. +

Peter J. Martin, Esquire, is a partner in the Worcester office of Bowditch & Dewey, LLP, his practice concentrates on health care and nonprofit law.

Josh Lewin is a partner in the litigation department at Bowditch and represents and advises clients with respect to all manner of business disputes and regulatory actions. Josh has litigated Anti-SLAPP motions in the Massachusetts courts and recently spoke as a panelist on the topic for the Massachusetts Bar Association.