               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA18-805

                                  Filed: 19 February 2019

Forsyth County, No. 15 CVS 2690

RICHARD ALAN BRODKIN, Plaintiff,

              v.

NOVANT HEALTH, INC., FORSYTH MEMORIAL HOSPITAL, INC., VOLKER
STIEBER, STEPHEN J. MOTEW, TIMOTHY S. COLLINS, and THOMAS H.
GROTE, Defendants.


       Appeal by plaintiff from orders entered 30 June 2017 by Judge John O. Craig

and 1 February 2018 by Judge Anderson D. Cromer in Forsyth County Superior

Court. Heard in the Court of Appeals 14 November 2018.


       David B. Hough, P.A., by David B. Hough, for plaintiff-appellant.

       Nelson Mullins Riley & Scarborough LLP, by G. Gray Wilson and Linda L.
       Helms, for defendant-appellee Volker Stieber.

       Constangy, Brooks, Smith & Prophete, LLP, by Kristine M. Sims and William
       J. McMahon, IV, for defendants-appellees.


       DIETZ, Judge.


       Dr. Richard Alan Brodkin was an oncologist treating cancer patients at

Forsyth Memorial Hospital1 in Winston-Salem. In 2014, other oncologists at the

hospital became concerned about Dr. Brodkin’s use of a treatment known as


       1 Forsyth Memorial Hospital is the legal name of the hospital, which the record indicates
presently does business under the name Novant Health Forsyth Medical Center.
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“induction chemotherapy.” Ultimately, following disagreements in a collaborative

meeting intended to ensure best practices, one of the other oncologists took his

concerns to the head of the department. This resulted in a series of discussions,

investigations, and reports that led the hospital to present Dr. Brodkin with an

ultimatum: sign a letter agreeing to limit some treatment practices, or be fired.

      When Dr. Brodkin refused to sign the letter, the hospital terminated his

employment. Dr. Brodkin then filed this lawsuit, which included claims for breach of

contract, wrongful discharge, tortious interference, fraud, and defamation. The trial

court granted summary judgment in favor of the Defendants on all claims, and this

appeal followed.

      As explained below, the bulk of Dr. Brodkin’s claims fail because his

employment contract was terminable without cause and the hospital’s decision to

terminate the contract was neither a breach of contract nor a violation of our State’s

public policy. The fraud claim fails because there is no evidence of fraud in this record.

The defamation claim fails because the challenged statements are protected by

qualified privilege. Thus, because the trial court properly concluded that the

defendants were entitled to judgment as a matter of law on all claims, we affirm the

court’s order.

                           Facts and Procedural History

      In 2010, Forsyth Memorial Hospital purchased Dr. Richard Alan Brodkin’s



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oncology practice. As part of the purchase, Dr. Brodkin became an employee of the

hospital. When he began employment, he signed a contract entitled “Physician

Employment Agreement.” The contract contained various terms of the parties’

employment relationship. The contract was terminable without cause by either party

and had no definite term.

      As part of his employment duties as an oncologist, Dr. Brodkin attended

collaborative meetings with other hospital physicians who treat cancer patients.

Together, these physicians would review patients’ case files to ensure that the

hospital’s patients were receiving the best treatment possible. The meetings were

referred to as “Tumor Board” meetings.

      This case arose out of a disagreement among physicians attending these Tumor

Board meetings. Some of Dr. Brodkin’s fellow oncologists, including Dr. Volker

Stieber, were concerned that Dr. Brodkin’s use of a treatment known as “induction

chemotherapy” was inconsistent with National Comprehensive Cancer Network

guidelines—a set of guidelines that reflected recommended treatment approaches

from experts around the country—and that these induction chemotherapy treatments

were not the appropriate course of treatment for Dr. Brodkin’s patients.

      Ultimately, Dr. Stieber complained to Dr. Susan Hines, the head of medical

oncologists at the hospital. Dr. Hines asked Dr. Stieber to provide a list of patients

who were impacted, and a description of Dr. Stieber’s concerns with those patients’



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treatment. In response, Dr. Stieber prepared an email that summarized Dr. Brodkin’s

care of ten patients and explained why Dr. Stieber and some of his colleagues

disagreed with those treatment decisions. Dr. Stieber’s email did not reference Dr.

Brodkin by name but it described the induction chemotherapy treatments provided

to ten of Dr. Brodkin’s patients and explained that Dr. Stieber and his “group” of

physicians had concerns about whether this was the appropriate course of treatment.

Dr. Stieber sent the email directly to Dr. Hines, copying Dr. Dawn Moose, but the

record indicates that the email eventually circulated to other employees of the

hospital.

      In November 2014, Dr. Timothy Collins, the hospital’s oncology service line

lead, and Dr. Thomas Grote, the hospital’s oncology practice lead, met with Dr.

Brodkin to discuss Dr. Stieber’s email. According to Dr. Brodkin, he was unaware of

Dr. Stieber’s email until this November meeting. Dr. Collins gave Dr. Brodkin one

week to respond to the issues identified in Dr. Stieber’s email and told him that Dr.

Grote would later evaluate the situation and make a recommendation. Dr. Brodkin

spent days reviewing his patients’ records and preparing a response, which he then

submitted to Dr. Grote.

      Later, at the request of Dr. Collins and other supervisory staff at the hospital,

Dr. Grote began a further review of Dr. Brodkin’s patient care by forming a committee

that consisted of oncologists from various specializations. The committee prepared a



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report with a series of forward-looking recommendations for Dr. Brodkin’s treatment

of patients.

      On 4 February 2015, Dr. Stephen J. Motew, a hospital administrator, met with

Dr. Brodkin and gave him a letter outlining the hospital’s expectations moving

forward. The expectations letter stated that Dr. Brodkin must follow the National

Comprehensive Cancer Network guidelines “in virtually every case” and that if he

departed from those guidelines in treating a patient he must first take the issue to

the “tumor board for multidisciplinary discussion and approval.” The letter stated

that “[b]eginning immediately, you will follow the expectations outlined above

providing patient care pursuant to the guidelines.”

      Dr. Motew told Dr. Brodkin that, if he did not sign this expectations letter, the

hospital would terminate Dr. Brodkin’s employment. Dr. Brodkin refused to sign the

letter because he believed that “he was being punished, because other people’s

interpretation of the [NCCN] guidelines was not correct” and “the expectations were

ridiculous, because [he] followed the guidelines in every case.” Two days later, Dr.

Brodkin circulated a lengthy email to his fellow medical oncologists at the hospital in

which he explained why he believed his induction chemotherapy treatments were

appropriate.

      On 26 February 2015, Dr. Grote and Dr. Collins sent a letter to Dr. Motew

discussing Dr. Brodkin’s refusal to sign the expectations letter and stating that



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“[s]ince [Dr. Brodkin] is unwilling to sign this letter and commit to the group’s

consensus of our Standard of Care, we support his termination of employment at this

time.” On 27 February 2015, Dr. Motew again met with Dr. Brodkin and asked that

he sign the letter. Dr. Brodkin refused. Dr. Motew then offered Dr. Brodkin the

opportunity to resign, which Dr. Brodkin declined. The hospital then terminated Dr.

Brodkin’s employment.

      Dr. Brodkin later sued the Defendants, asserting claims including breach of

contract, wrongful discharge, fraud, tortious interference with contract, and

defamation. After an opportunity for full discovery, the trial court granted summary

judgment in favor of the Defendants on all claims in orders entered 30 June 2017 and

1 February 2018. Dr. Brodkin timely appealed.

                                       Analysis

      Dr. Brodkin argues that the trial court erred by granting summary judgment

in favor the Defendants on each of the claims he asserted in this action. This Court

reviews an appeal from summary judgment de novo. In re Will of Jones, 362 N.C. 569,

573, 669 S.E.2d 572, 576 (2008). Summary judgment is proper when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law.” N.C. R. Civ. P. 56(c). When




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considering a summary judgment motion, we view the evidence in the light most

favorable to the non-movant. Jones, 362 N.C. at 573, 669 S.E.2d at 576.

   I.      Breach of Contract Claim

        We begin with Dr. Brodkin’s breach of contract claim. To establish a breach of

contract claim, there must be: (1) the existence of a valid contract and (2) a breach of

a contractual term. McKinnon v. CV Indus., Inc., 213 N.C. App. 328, 333, 713 S.E.2d

495, 500 (2011).

        Our analysis of this claim involves two separate clauses in the employment

contract, and we quote the relevant contract language here for ease of understanding.

First, the contract provides that Dr. Brodkin “will have exclusive control over

decisions requiring professional medical judgment”:

           3. DUTIES AND EXTENT OF SERVICES
           a. Practice of Medicine. . . . Physician shall exercise independent
           professional judgment in the treatment and care of patients and,
           in this regard, will have exclusive control over decisions requiring
           professional medical judgment.

        Second, the contract provides that either party may terminate it without cause

by providing 90 days’ notice:

           14. TERMINATION OF EMPLOYMENT
           ...

           b. Termination Without Cause. Either party may terminate
           Physician’s employment without cause by providing the other
           party at least ninety (90) days’ written notice of its intention to
           terminate, such termination to be effective as of the date specified


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         in the notice, but not prior to the expiration of the ninety (90) day
         notice period.

      Dr. Brodkin’s argument is straightforward. He contends that, when the

hospital presented him with the expectations letter and demanded that he sign it or

be fired, the hospital breached the contract. He argues that the expectations letter

would have required him to pursue courses of treatment with which he disagreed,

thus eliminating his exclusive control over decisions involving his professional

medical judgment. Because the contract guaranteed that he would retain exclusive

control of his medical judgment, Dr. Brodkin contends that the hospital’s demand to

sign the expectations letter breached the contract.

      The flaw in this argument is that, even assuming Dr. Brodkin’s interpretation

of the professional judgment clause is correct (the hospital disagrees with that

interpretation), there is no evidence that the hospital ever prevented Dr. Brodkin

from exercising his professional judgment, or that it took any disciplinary action

against him for exercising that independent judgment. The hospital only sought to

monitor (and potentially restrict) Dr. Brodkin’s future treatment decisions. It did so

by requesting that Dr. Brodkin agree to either amend the contract or waive the

professional judgment clause as a condition of continuing the parties’ contractual

relationship (which the hospital could terminate at any time).

      Put another way, what happened here is what happens in countless contract

relationships that are terminable without cause at any time: one party indicated that


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it would need to terminate the contract unless the parties agreed to change the terms.

So long as the party requesting the change has not yet materially breached the

contract (as is the case here), requesting an amendment or waiver of an otherwise

binding contract term is not a breach. See, e.g., Varnell v. Henry M. Milgrom, Inc., 78

N.C. App. 451, 454, 337 S.E.2d 616, 618 (1985). Thus, because the hospital had not

breached the contract at the time it terminated without cause, the trial court properly

determined that the hospital was entitled to judgment as a matter of law on Dr.

Brodkin’s breach of contract claim.

   II.      Wrongful Discharge Claim

         We next address Dr. Brodkin’s claim that his termination for refusing to sign

the expectations letter violated North Carolina public policy and thus amounted to

wrongful discharge. Ordinarily, an employee whose contract is terminable without

cause “has no claim for relief for wrongful discharge.” Privette v. Univ. of North

Carolina at Chapel Hill, 96 N.C. App. 124, 133, 385 S.E.2d 185, 190 (1989). But there

is a limited exception to this rule where the termination runs contrary to our State’s

public policy. Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551

S.E.2d 179, 181 (2001). To prevail, “the employee has the burden of pleading and

proving that the employee’s dismissal occurred for a reason that violates public

policy.” Id.




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         Dr. Brodkin has not met that burden here. He contends that N.C. Gen. Stat.

§ 90-14(a)(6), a statute that protects physicians from certain regulatory discipline for

pursuing experimental treatments, demonstrates a North Carolina public policy in

favor of safeguarding physician independence. But even assuming this is true—an

issue we need not address today—that would not prevent a hospital from discharging

an employee whose medical decisions, in the hospital’s view, are harmful to its

patients.

         As the Oregon Court of Appeals has observed, “although [a doctor] may have

had a duty to exercise his professional judgment, other doctors had no duty to agree

with him, nor did [a hospital] have an obligation to accept [the doctor’s] judgment

over the judgment of its other doctors.” Eusterman v. Northwest Permanente, P.C.,

129 P.3d 213, 220 (Or. App. 2006). Put another way, even assuming there is a public

policy protecting physicians’ independent judgment, that policy would not force an

employer (whether a hospital or other physicians in a shared practice) to continue

employing or partnering with a physician whose professional judgment they believe

is wrong. Accordingly, we reject Dr. Brodkin’s public policy argument and hold that

the trial court did not err in granting summary judgment on the wrongful discharge

claim.

   III.     Fraud Claim

         We next address Dr. Brodkin’s fraud claim. Dr. Brodkin argues that the



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hospital committed fraud when the parties initially entered into an employment

contract nearly a decade ago. He asserts that the hospital never had any intention of

affording Dr. Brodkin independent medical judgment, despite the professional

judgment language in the contract, and mispresented that fact to Dr. Brodkin during

contract negotiations.

      To establish a claim of fraudulent misrepresentation, the plaintiff must show:

(1) a false representation or concealment of a material fact; (2) reasonably calculated

to deceive; (3) made with intent to deceive; (4) which does in fact deceive; (5) resulting

in damage to the injured party. Taylor v. Gore, 161 N.C. App. 300, 303, 588 S.E.2d

51, 54 (2003).

      Here, there is no evidence in the record that the hospital either falsely

represented any material fact concerning the employment contract or intended to

deceive Dr. Brodkin about any material fact in the contract. As explained above, at

best, the record indicates that the hospital sought to limit some of Dr. Brodkin’s

treatment methods after other oncologists expressed concerns. This occurred many

years after the parties entered into the employment contract. There is nothing in the

record from which a reasonable jury could infer that the hospital made any

misrepresentations, or intended to deceive Dr. Brodkin, at the time the parties

entered into the contract. Accordingly, the trial court properly granted summary

judgment on this claim.



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   IV.      Tortious Interference With Contract Claim

         We next address Dr. Brodkin’s claim that Dr. Grote tortiously interfered with

the employment contract. To establish a claim for tortious interference with contract,

there must be “(1) a valid contract between the plaintiff and a third person which

confers upon the plaintiff a contractual right against a third person; (2) the defendant

knows of the contract; (3) the defendant intentionally induces the third person not to

perform the contract; (4) and in doing so acts without justification; (5) resulting in

actual damage to plaintiff.” United Labs, Inc. v. Kuykendall, 322 N.C. 643, 661, 370

S.E.2d 375, 387 (1988).

         Dr. Brodkin claims that Dr. Grote induced the hospital not to afford Dr.

Brodkin his right to his own professional medical judgment, which in turn breached

the professional judgment clause in the contract. This claim fails because, as

explained above, the hospital did not breach the contract. Moreover, when the person

who allegedly interferes with the contract is an employee of the defendant, the

plaintiff must show that the alleged interference was unrelated to a “legitimate

business interest” of the employee. McLaughlin v. Barclays American Corp., 95 N.C.

App. 301, 308, 382 S.E.2d 836, 841 (1989). Here, the record indicates that hospital

administrators tasked Dr. Grote with investigating and addressing concerns about

Dr. Brodkin’s treatment of patients. There is no evidence in the record that Dr. Grote

pursued that investigation for reasons other than his legitimate interest in carrying



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out his own role within the hospital hierarchy. Accordingly, the trial court properly

entered summary judgment on this tortious interference claim.

   V.       Defamation Claim

        Finally, we address Dr. Brodkin’s defamation claim against Dr. Stieber. Dr.

Brodkin argues that Dr. Stieber defamed him by emailing a hospital administrator

expressing concerns about Dr. Brodkin’s treatment of patients. Because the

communications are protected by the affirmative defense of qualified privilege, we

disagree.

        “To be actionable, a defamatory statement must be false and must be

communicated to a person or persons other than the person defamed.” Daniels v.

Metro Magazine Holding Co, L.L.C., 179 N.C. App. 533, 538–39, 634 S.E.2d 586, 590

(2006). But even if a statement satisfies these criteria for defamation—an issue we

need not reach in this case—the defendant can assert the affirmative defense of

qualified privilege. Stewart v. Nation-Wide Check Corp., 279 N.C. 278, 283, 182

S.E.2d 410, 414 (1971). Qualified privilege is established if the communication is

made in good faith, there is an interest to be upheld, the statement is limited in scope

to its purpose, the publication is directed to proper parties, and the statement was

not made with malice or through excessive publication. Harris v. The Proctor &

Gamble Mfg. Co., 102 N.C. App. 329, 331, 401 S.E.2d 849, 850–51 (1991).




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      Evening assuming Dr. Stieber’s email otherwise would be defamatory (and we

are not persuaded that it would be), the email is protected by qualified privilege. The

email addressed legitimate concerns Dr. Stieber had with the course of treatment for

many of Dr. Brodkin’s patients. Ensuring that cancer patients receive the appropriate

medical treatment is unquestionably an important interest for all parties in this

lawsuit, including Dr. Stieber. Moreover, there is nothing in the record from which a

reasonable jury could infer that Dr. Stieber acted with any malice or bad faith; to the

contrary, the record indicates that Dr. Stieber had a good faith disagreement with a

fellow cancer doctor about the appropriate course of treatment during a meeting

designed to encourage honest debate. Dr. Stieber discussed those concerns with the

hospital’s head of oncology, who requested that Dr. Stieber compile the concerns in

an email. That is precisely what Dr. Stieber did in this case. Accordingly, the trial

court properly granted summary judgment on the defamation claim because it is

barred by the affirmative defense of qualified privilege.

                                     Conclusion

      For the reasons stated above, we affirm the trial court’s orders.

      AFFIRMED.

      Chief Judge McGEE and Judge ARROWOOD concur.




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