MAINE SUPREME JUDICIAL COURT                                    Reporter of Decisions
Decision: 2016 ME 60
Docket:   And-15-260
Argued:   March 2, 2016
Decided:  April 21, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
             HUMPHREY, JJ.



                               KEVIN F. STRONG

                                        v.

                         REBECCA M. BRAKELEY et al.

GORMAN, J.

         [¶1] Kevin F. Strong appeals from a summary judgment entered in the

Superior Court (Androscoggin County, MG Kennedy, J.) in favor of Rebecca M.

Brakeley and Jonathan M. Bausman granting them immunity from Strong’s

complaint for defamation and tortious interference with a business relationship.

Strong contends that the court erred by concluding that 24 M.R.S. § 2511 (2015)

provides Brakeley and Bausman with absolute immunity for statements they made

regarding Strong’s professional credentials. We affirm the judgment.

                                I. BACKGROUND

         [¶2] Viewed in the light most favorable to Strong, the summary judgment

record establishes the following facts.      See Cookson v. Brewer Sch. Dep’t,

2009 ME 57, ¶ 11, 974 A.2d 276.         Brakeley, Bausman, and Strong are all
2

physicians licensed to practice medicine in Maine. Synernet, Inc., is a “credentials

verification organization, which collects, verifies, and dispenses physician

credentialing information” to its clients, including hospitals. St. Mary’s Regional

Medical Center is a hospital that provides health care services and follows

competence review processes. St. Mary’s contracted with Synernet to collect

credentialing information on its behalf. Synernet began collecting credentialing

information regarding Strong after Strong applied for staff privileges at St. Mary’s

in 2013.     As part of that effort, Synernet sent “Professional Reference

Questionnaires” to Brakeley and Bausman “for the purpose of assisting St. Mary’s

in collecting credentialing information relating to [Strong].”       Brakeley and

Bausman completed their questionnaires and returned them to Synernet, which

then forwarded them to St. Mary’s.

      [¶3] On October 15, 2013, Strong filed a complaint in the Superior Court

against Brakeley and Bausman, alleging that certain negative statements made by

them on Synernet’s questionnaires caused St. Mary’s to deny him staff privileges.

By amended complaint, Strong asserted claims for defamation and tortious

interference with his business relationship with St. Mary’s, and sought punitive

damages. Brakeley and Bausman filed a motion to dismiss the complaint on the

ground that they enjoyed absolute immunity for their statements pursuant to

24 M.R.S. § 2511. The court denied the motion and allowed the case to proceed,
                                                                                                        3

but limited the scope of discovery to the immunity issue. After that discovery was

completed, Brakeley and Bausman filed a motion for summary judgment on all

counts and, based on its conclusion that section 2511 afforded them absolute

immunity, the court granted that motion. Strong appeals.

                                         II. DISCUSSION

        [¶4] When, as here, a defendant moves for summary judgment, we first

examine the summary judgment record in the light most favorable to the plaintiff

to determine, de novo, whether any genuine dispute of material fact exists for trial.1

Cookson, 2009 ME 57, ¶ 11, 974 A.2d 276. “An issue is genuine if there is

sufficient evidence supporting the claimed factual dispute to require a choice

between the differing versions; an issue is material if it could potentially affect the

outcome of the matter.” Id. (quotation marks omitted).

        [¶5] The court granted a summary judgment based solely on Brakeley and

Bausman’s immunity pursuant to 24 M.R.S. § 2511, which is found within the

Maine Health Security Act, 24 M.R.S. §§ 2501-2988 (2015).                               Section 2511

provides as follows:


   1
     Strong cites to precedent from the 1970s to argue that “[s]ummary judgment is an extreme remedy,”
Haskell v. Planning Bd., 388 A.2d 100, 102 (Me. 1978) (quotation marks omitted). Since 2001, however,
we have stated on multiple occasions that “[s]ummary judgment is no longer an extreme remedy,” and is
instead “simply a procedural device for obtaining judicial resolution of those matters that may be decided
without fact-finding.” Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18; see also Guardianship of
Jo Ann L., 2004 ME 68, ¶ 11, 847 A.2d 415 (“Summary judgment procedure is an appropriate practice
encouraged in most litigated cases in order to effectuate policies of judicial economy.”).
4

      § 2511. Immunity

            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. Because the parties dispute its scope and application, we must

interpret this provision de novo by first evaluating its plain language.

See MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 6, 82 A.3d 104; Searle v.

Town of Bucksport, 2010 ME 89, ¶ 8, 3 A.3d 390. If that language is ambiguous,

we then look to legislative history and other indicia of legislative intent to

determine the provision’s meaning. MaineToday Media, Inc., 2013 ME 100, ¶ 6,

82 A.3d 104.

      [¶6] In its first paragraph, section 2511 identifies those persons or entities

who may claim immunity according to their occupation or role.            The plain

language of the first paragraph of section 2511 makes eligible for immunity “any
                                                                                                    5

physician.”2 24 M.R.S. § 2511. Because it is undisputed in the summary judgment

record that Brakeley and Bausman are physicians, Brakeley and Bausman are

eligible for immunity as a matter of law for any action described in subsection 1, 2,

or 3.

        [¶7] Next, in subsections 1, 2, and 3, the statute delineates the actions for

which the identified persons have immunity. In subsections 1 and 2, immunity is

dependent upon the identity of the recipient of a report and the purpose of the

report. For subsection 3, immunity is dependent upon the provision of assistance

to a board, authority, or committee.                 Strong contends that Brakeley’s and

Bausman’s statements were not actions described in subsection 1, 2, or 3, and

therefore they are not immune from liability. We begin by analyzing subsection 3

because it is the provision pursuant to which the Superior Court determined that

Brakeley and Bausman are immune from liability.                         Because Brakeley and

Bausman are physicians, we discuss subsection 3’s application to physicians in

particular.

        [¶8] Subsection 3 states that immunity is afforded when a physician is

“assisting” a “board, authority or committee in carrying out any of its duties or

functions provided by law.” 24 M.R.S. § 2511(3). There is no dispute that


  2
     “Physician” is defined as “any natural person authorized by law to practice medicine, osteopathic
medicine or veterinary medicine within this State.” 24 M.R.S. § 2502(3) (2015).
6

Brakeley and Bausman provided information to Synernet. Strong argues, however,

that Synernet does not qualify as one of the intended recipients of assistance

identified by subsection 3—namely, a “board, authority or committee”—and

therefore Brakeley and Bausman are not immune on that basis.

      [¶9] Although “board, authority or committee” is not defined in the statute,

we conclude that the phrase at least includes a “professional competence

committee” based on express references to such committees in the first paragraph

and in subsection 1 of section 2511. The Maine Health Security Act defines a

“[p]rofessional competence committee” as, inter alia, “[e]ntities and persons,

including contractors, consultants, attorneys and staff, who assist in performing

professional competence review activities.”    24 M.R.S. § 2502(4)(C).     Section

2502 further defines “[p]rofessional competence review activity” as the “study,

evaluation, investigation, recommendation or action, by or on behalf of a health

care entity and carried out by a professional competence committee” that is

necessary to “[m]aintain or improve the quality of care rendered in, through or by

the health care entity or by physicians”; “[r]educe morbidity and mortality”; or

“[e]stablish and enforce appropriate standards of professional qualification,

competence, conduct or performance.” 24 M.R.S. § 2502(4-B).

      [¶10] The undisputed facts in this case establish that St. Mary’s is a health

care entity that has contracted to have Synernet collect, verify, and dispense
                                                                                                     7

credentialing information for the purpose of the hospital’s competence review

process, and that Synernet did so as to Strong’s application for staff privileges at

St. Mary’s. Pursuant to section 2502(4)(C), Synernet is a professional competence

committee because it is a “contractor[] . . . [that] assist[s] in performing

professional competence review activities,”3 and therefore Synernet qualifies as a

“board, authority or committee” pursuant to 24 M.R.S. § 2511(3).

       [¶11] In challenging the application of subsection 3, Strong also offers an

unnecessarily limited view of the word “assisting,” arguing that it refers only to

instances in which a physician is a member of the board, authority, or committee,

rather than to instances in which a physician provides information to or otherwise

aids the board, authority, or committee. This is an illogical and unsupported

interpretation.     See Fernald v. Shaw’s Supermarkets, Inc., 2008 ME 81, ¶ 7,

946 A.2d 395 (stating that we must avoid “absurd, illogical or inconsistent results”

in interpreting a statute (quotation marks omitted)). By its plain terms, section

2511(3) contains no such requirement. The statute is intended to protect the acts of

the person providing assistance; Strong, by focusing on the acts of board, authority,

or committee members themselves, twists subsection 3 to instead protect the acts

of the committee to whom the assistance is given. No language in the statute

  3
      Contrary to Strong’s suggestion, there is nothing in the language of section 24 M.R.S. § 2502(4),
(4-B) (2015) or in 24 M.R.S. § 2511 (2015) that requires Synernet to make the ultimate credentialing
decision in order to fall within the statute’s reach.
8

suggests a basis for limiting the application of subsection 3 to the small subset of

persons who staff such boards, authorities, and committees.

      [¶12] In the alternative, Strong contends that a physician’s action does not

“assist[]” a board, authority, or committee within the meaning of section 2511(3)

when that action involves making a false report or making a report with ill will.

By this argument, Strong attempts to impute into the statute a malice requirement

that simply is not there. See DiPietro v. Boynton, 628 A.2d 1019, 1024 (Me. 1993)

(defining “malice” as “motivated by ill will toward the plaintiff”).      The only

mention of malice anywhere in section 2511 is in the first paragraph—in supplying

an exhaustive list of eligible reporters, section 2511 names “[a]ny person acting

without malice” independently from the other identified persons and entities on the

list, including physicians. 24 M.R.S. § 2511. Thus, the absence of malice is a

requirement for anyone seeking immunity pursuant to section 2511 who otherwise

does not fall within any of the listed categories of eligible reporters.         As

physicians, Brakeley and Bausman are not subject to the “acting without malice”

requirement, and Strong concedes as much in his brief. The plain language of

section 2511 otherwise contains no “acting without malice” requirement, and we

decline to read one into it. Cf. Pitts v. Moore, 2014 ME 59, ¶ 18, 90 A.3d 1169

(noting that policy decisions are reserved for the Legislature).
                                                                                                       9

        [¶13] Finally, Strong suggests that section 2511 must be interpreted to limit

immunity to instances in which a reporter is mandated by law to make a report.

See, e.g., 24 M.R.S. §§ 2505, 2506, 2602 (involving mandatory reporting

requirements). Again, section 2511(3) contains no such language. Rather, the

“provided by law” language in subsection 3 is an adjectival phrase that directly

modifies the nouns “duties or functions.” See Univ. of Chicago Press, Chicago

Manual of Style §§ 5.91, 5.156 (16th ed. 2010) (distinguishing phrasal adjectives

from adverbs depending on the parts of speech they modify).                              Simply put,

subsection 3 affords immunity to a person assisting a board, authority, or

committee when that board, authority, or committee is performing its statutory

role, without regard to whether providing that assistance was a voluntary or

mandatory act.4 As we have already determined, the summary judgment record

establishes as a matter of law that Synernet was acting according to its statutory

duties as a professional competence committee in seeking, on behalf of St. Mary’s,



   4
      In McCullough v. Visiting Nurse Service of Southern Maine, Inc., we considered a nurse’s claim that
a nursing service defamed her by reporting to the State Board of Nursing the details regarding the
termination of her employment. 1997 ME 55, ¶¶ 2, 12, 691 A.2d 1201. We agreed with the trial court
that the nursing service was immune for its reports pursuant to the predecessor version of the statute,
24 M.R.S.A. § 2511 (1990 & Supp. 1996). McCullough, 1997 ME 55, ¶¶ 13-14, 691 A.2d 1201. The
facts of McCullough happened to involve a mandatory report by the nursing service, but we did not state
that mandatory reporting was always a condition for immunity pursuant to section 2511, and in fact, we
noted that it was “unnecessary for us to express an opinion whether the immunity provided by section
2511 is absolute or conditioned on the reporter acting without malice.” McCullough, 1997 ME 55,
¶¶ 13-14, 691 A.2d 1201.
10

the credentialing information that was provided by Brakeley and Bausman.

See 24 M.R.S. § 2502(4)(C), (4-B).

         [¶14] We conclude that Brakeley’s and Bausman’s answers to Synernet’s

questionnaires constituted reports by eligible reporters made for the purpose of

assisting a board, authority, or committee in carrying out its statutory duties as a

matter of law within the plain meaning of section 2511(3). Strong’s reading of

section 2511, in contrast, would limit its application to only a select few, and

would discourage the type of reporting that section 2511 was instead meant to

encourage.5 We therefore affirm the summary judgment affording immunity to

Brakeley and Bausman for their reports about Strong.6

         The entry is:

                         Judgment affirmed.




     5
      We are not persuaded by Strong’s other argument—that the court erred in limiting discovery to
certain topics that precluded him from inquiring into whether Brakeley and Bausman were acting
“honestly, in good faith and for a legitimate purpose.” The court limited discovery to those materials that
were relevant to 24 M.R.S. § 2511(3) as we have interpreted it today. See Fernald v. Shaw’s
Supermarkets, Inc., 2008 ME 81, ¶ 7, 946 A.2d 395 (stating that the fact-finder’s limits on discovery are
reviewed for an abuse of discretion). The matters on which Strong sought additional discovery were
irrelevant to the question of Brakeley and Bausman’s immunity pursuant to section 2511(3).
See M.R. Civ. P. 26(b)(1) (limiting discovery to those materials that are not privileged, relevant, and
“reasonably calculated to lead to the discovery of admissible evidence”).
     6
     Because our conclusion—that Brakeley and Bausman are entitled to immunity pursuant to section
2511(3) as a matter of law—is dispositive, we need not consider whether they also would be entitled to
immunity pursuant to section 24 M.R.S. § 2511(1) or (2).
                                                                      11


On the briefs:

        Phillip E. Johnson, Esq., Johnson, Webbert & Young, LLP,
        Augusta, for appellant Kevin F. Strong

        Michael R. Poulin, Esq., and Amy Dieterich, Esq., Skelton
        Taintor & Abbott, Auburn, for appellees Rebecca M. Brakeley
        and Jonathan M. Bausman


At oral argument:

        Phillip E. Johnson, Esq., for appellant Kevin F. Strong

        Michael R. Poulin, Esq., for appellees Rebecca M. Brakeley
        and Jonathan M. Bausman



Androscoggin County Superior Court docket number CV-2013-144
FOR CLERK REFERENCE ONLY
