DOUGALL v. GUTMAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Cornelia Dougall, appeals from a summary judgment that ruled against her claims for defamation, intentional interference with contractual relations, breach of contract, and civil conspiracy. The lawsuit was filed after the plaintiff resigned from her job as an emergency medical technician (EMT) for the town of Marion (Marion), where she was employed from 1977 to December 2012. We affirm.

Background. We recite the facts in the light most favorable to the plaintiff. In 2008, Marion and Southcoast Hospitals Group, Inc. (Southcoast Hospitals), entered into an advanced life support agreement (ALSA) in order to comply with State licensing requirements. Under the ALSA, Southcoast Hospitals was to hire a medical director who would retain “authority over the clinical and patient care aspects of the [a]mbulance [s]ervice's provision of pre-hospital [advanced life support] services, including but not limited to the authorization to practice of its EMTs, and the denial or withdrawal of such authorization to practice.” This medical director would also lend his or her medical license to any EMT practicing prehospital medicine.

In 2011, defendant Amy Gutman was hired for the medical director position in Tobey Hospital's (Tobey's) prehospital region. Before she began, she sent a letter to three of her superiors that raised “serious medico-legal concerns” regarding the performance of Marion prehospital personnel. Gutman's concerns were grounded on her months-long review of “current protocols, clinical and didactic skills, documentation/CQI[³ ] issues, and licensing” of the Tobey emergency medical services (EMS) team. In the letter, Gutman announced that all personnel under her supervision would need to demonstrate “clinical and didactic competency․ Inability to pass either the clinical or didactic portion of the test will result in restriction of the individual(s) to work clinically as it puts not only the public in jeopardy, but puts my medical license at risk.” The plaintiff was not mentioned in the letter.

In January 2012, months after taking control of the department, Gutman authored and circulated the meeting minutes from a meeting between herself, the chief of Marion EMS/Fire Department, and a representative from the Cape and Islands EMS team. The minutes reflect Gutman's largely negative opinion about the state of the Marion EMS, and spends almost four pages noting “concerning trends and personnel issues” with high specificity. The plaintiff's name appears a few times in the memorandum, interspersed throughout Gutman's analysis of the team. First, Gutman writes that “[t]he paramedic coordinator Dougall (who Dr. Gutman has already stated she feels very strongly against continuing on in that position) has often and loudly insisted that an EMT-B cannot coordinate EMS as they are not qualified.” Second, Gutman continues, “Paramedic Dougall's documentation is barely adequate but often she does not recognize ․ common (life-threatening) clinical presentations.”

On June 26, 2012, Gutman suspended Dougall's power to practice medicine pending remediation.⁴ The accompanying letter stated that Dougall “[had] been noted to have a pattern established by CQI review of deficiencies in documentation, assessment and management. These deficiencies do not provide enough confidence in your current practice to allow you to continue providing patient care without remediation.”⁵ Attached to the letter was a “partial list of specific patient care issues” that Gutman had found in Dougall's work from the preceding four months. David Faunce and Thomas Joyce were also present when Gutman gave Dougall the letter.

In September 2012, Dougall was provisionally reinstated after completing certain components of her remediation plan. In October 2012, Gutman e-mailed Dougall directly after Dougall complained to other doctors that her suspension was driven by personal animus.⁶ In November 2012, Dougall and two other paramedics responded to a call for a cardiac arrest emergency. Unfortunately the patient died at the hospital. In a letter describing the incident, Gutman wrote to Joyce that “[t]here was either a disregard for the standard of care, or a complete lack of recognition ․ by ALL three paramedics involved in patient care ․ as the paramedics misidentified this common, lethal, and TREATABLE” condition. In a written communication dated December 7, 2012, Dougall admitted that she may have “incorrectly deferred” to the leadership of the other paramedics and failed to consider another air management technique. She also said she “cannot account for [her] own oversight.” Dougall resigned thereafter.

Dougall subsequently filed this action. She alleged claims of defamation against Gutman, intentional interference against Gutman, breach of contract against Southcoast Hospitals, and civil conspiracy against Gutman and Faunce. All three defendants moved for summary judgment. In a thoughtful and detailed order, the judge granted the motion and judgment entered. The plaintiff now timely appeals.

Discussion. We review the grant of summary judgment de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). The evidence is viewed in the light most favorable to the party against whom judgment has entered. Miramar Park Ass'n v. Dennis, 480 Mass. 366, 376-377 (2018). Summary judgment is appropriate “where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. at 376.

a. Defamation. To succeed, a defamation complaint

“must allege facts indicating that (1) the defendant published a false statement regarding the plaintiff -- that is, the defendant communicated the statement concerning the plaintiff to a third party; (2) the statement could damage the plaintiff's reputation in the community; and (3) the statement caused economic loss or is otherwise actionable without proof of economic loss.”

Flagg v. AliMed, Inc., 466 Mass. 23, 37 (2013). Statements of opinion are not actionable. King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987). “[T]he court must give weight to cautionary terms used by the person publishing the statement ․ [and] the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published” (citation omitted). Driscoll v. Trustees of Milton Academy, 70 Mass. App. Ct. 285, 297 (2007). On appeal, Dougall claims that Gutman's statements in her memoranda were false, did not constitute opinion, and that material disputed issues of fact precluded summary judgment. We disagree.

Dougall's claims are meritless. A careful review of the record reflects that Gutman's statements about Dougall were opinions on Dougall's job performance. As the individual tasked with evaluating the plaintiff's work product, which the plaintiff admits, Gutman is afforded a conditional privilege to make those assessments. See Mulgrew v. Taunton, 410 Mass. 631, 635 (1991). Dougall relies upon an expert to argue that Gutman made material misstatements of fact in her suspension letter, but the expert himself concedes that Dougall had made “minor deficien[cies]” in treatment. Summary judgment was properly granted as to this claim.⁷

b. Intentional interference with contractual relations. Dougall next argues that the lower court judge improperly dismissed her intentional interference claim because the judge required Dougall to show that Gutman acted with improper motive or malice.

“In an action for intentional interference with contractual relations, the plaintiff must prove that: (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions.”

G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).

The judge faithfully applied the correct standard and summary judgment was appropriate. To prove an “improper purpose,” Dougall must demonstrate that Gutman acted with actual malice and that the disputed conduct “is wrongful by some measure beyond the fact of the interference itself.” United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816 (1990). Dougall here states that Gutman's motive was to get Dougall “out of Gutman's way” and had “personal negative feelings towards Dougall.” That, plainly, is not enough to support a claim for intentional interference. See King v. Driscoll, 418 Mass. 576, 587 (1994).

c. Breach of contract. Dougall also argues that she was an intended third-party beneficiary of the contract between Southcoast Hospitals and her employer, Marion. To prevail on a claim for breach of contract, Dougall must demonstrate there was (1) an oral or written agreement, express or implied; (2) supported by valid consideration; (3) the plaintiff was ready, willing, and able to perform; (4) breach by the defendant; and (5) damage to the plaintiff. See Singarella v. Boston, 342 Mass. 385, 387 (1961). In order to become a third-party beneficiary, Dougall must show that she was an intended beneficiary of the contract. See Macksey v. Egan, 36 Mass. App. Ct. 463, 468 (1994), quoting Restatement (Second) of Contracts § 302(1)(b) (1979).

Here, any benefit Dougall derived from ALSA was incidental.⁸ See Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 366-367 (1997) (intent to create third-party beneficiary must be clear and definite). There is no evidence that Southcoast Hospitals intended to benefit the plaintiff when entering the contract. On its own, the plaintiff's status as an at-will employee is insufficient to show that she was an intended beneficiary of the contract. See id. Summary judgment was warranted as to this claim.

d. Civil conspiracy. Finally, Dougall's complaint alleges that Faunce and Gutman committed a civil conspiracy by “unlawfully interfer[ing] with Dougall's employment contract and/or contractual relations as a [p]aramedic.” Civil conspiracy in Massachusetts may be proven via one of two theories. Under the first theory, Dougall would be required to “show an underlying tortious act in which two or more persons acted in concert and in furtherance of a common design or agreement.” Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011). Under the second theory, a showing is required that Gutman and Faunce exercised “some peculiar power of coercion” over Dougall through “force of numbers” that the defendants would not have had independently (citations omitted). Fleming v. Dane, 304 Mass. 46, 50 (1939).

Because there is no valid underlying tortious act, as explained above, no claim lies under the first theory. See Bartle, 80 Mass. App. Ct. at 383-384. The second theory of civil conspiracy also fails. Dougall's complaint does not allege that Faunce and Gutman were collectively more coercive than they were as individuals. At her deposition, Dougall admitted that Gutman was the sole person with decision-making authority to oversee and suspend EMS staff. Dougall's allegations toward Faunce consist of the fact that he walked into the meeting with Gutman, raised his voice at Dougall during the meeting, and advised her not to “fight” the suspension. Faunce's presence at the meeting did not enhance or alter Gutman's sole authority to suspend Dougall. Compare Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 837 (2015). The claim was properly dismissed.

Judgment affirmed.

FOOTNOTES

3.   Continuous quality improvement.

4.   Under ALSA, Gutman had the authority to suspend Dougall. ALSA § 2.4 tasks the medical director with determining whether to authorize an EMT's practice. If the medical director “restricted, suspended, or revoked” an EMT's authorization, the medical director's sole obligation was to notify the Department of Public Health.

5.   On the letter, Gutman copied Thomas Joyce, the chief of Marion EMS/fire department; David Faunce, the Massachusetts office of emergency services region V director; William Flynn, Cape and Islands EMS system director; and Susan Valdez, the Tobey emergency associates prehospital care coordinator.

6.   From the October 25, 2012 e-mail: “I feel the need to remind you that at your reinstatement meeting, your defense that you provided outstanding paramedic care and have knowledge of advance level practice was followed by stating that you had no idea that there were two pulses in the wrist. On your clinical scenario testing, you could not state basic facts like calculating a GCS [Glasgow coma scale]; when asked about arrhythmias, the only drug you could remember and properly dose was lidocaine. This does not instill confidence in your ability to provide high-level quality patient care and demonstrates that passing a test does not indicate that you are a skilled paramedic. You may also recall that both myself and Sue Valdez offered to help you with your basic and advanced skills and that I looked forward to sitting in one of your classes as ALS [c]oordinator -- certainly not the actions of someone who does not want you to improve or succeed.”

7.   In addition, as expressions of opinion, rather than of fact, the statements are not actionable as defamation. See, e.g., Scholz v. Delp, 473 Mass. 242, 249-250 (2015).

8.   Dougall did not have an employment contract with Marion, and was an employee-at-will.