Paul H. Deutsch v. Backus Corporation et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 249

This is an action for damages arising out of an investigation of the plaintiff, Paul H. Deutsch, a physician with privileges at the William Backus Hospital.   The investigation concerned alleged violations of patient confidentiality by the plaintiff through his suspected unauthorized use of another doctor's computer password to access and disclose certain medical records to the state department of health.   The defendants, Backus Corporation (the corporate entity doing business as William Backus Hospital, and hereinafter referred to as the “hospital”), Richard H. Finley, Edward L. Fisher, Anthony G. Alessi, and David Kalla, all allegedly were involved with the hospital's internal investigation of the plaintiff.   The defendants now move for summary judgment on the remaining counts of the operative complaint.¹  Specifically, all of the defendants move for summary judgment on the third and tenth count, which allege tortious interference with business expectancies and contractual relations against them.   Additionally, the hospital, Finley and Fisher move for summary judgment on the eleventh count, which alleges that those defendants engaged in vexatious litigation.   Finally, the hospital moves for summary judgment on the fourth and fifth counts, which alleges that it breached its contract with the plaintiff, along with the implied covenant of good faith and fair dealing.   In support of their motion, the defendants have filed numerous exhibits.

The plaintiff has objected to summary judgment, supporting his objection with over 900 pages of exhibits.   The defendants have filed a reply brief.   The court heard argument on June 18, 2013.   The parties' familiarity with the facts underlying this case is assumed, and the court previously has outlined the background of this case in its memoranda addressing the defendants' motions to strike.   See Docket Nos. 134.00 and 185.00.²  The court will grant summary judgment on the third, tenth and eleventh counts.   The court will deny summary judgment on the fourth and fifth counts.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003) The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

The operative complaint outlines the plaintiff's remaining claims, which seek damages.³  The complaint alleges in its third count that the defendants tortiously interfered with the plaintiff's business expectancies.   Specifically, the third count alleges that the hospital ceased referral of emergency department patients to the plaintiff, resulting in the loss of at least five patients per month, and, additionally, siphoned off dozens of patients presenting to the hospital's emergency department to its hospitalist program.   The plaintiff alleges that the individual defendants were acting at the direction of the hospital's management.   The plaintiff alleges that the defendants knew of his business relationships and arrangements with his patients and colleagues at the hospital, including the existence of patient referral arrangements with the hospital and its medical staff, and intentionally interfered with those relationships.

The fourth count alleges that the hospital breached its contract with the plaintiff.   Specifically, the fourth count alleges that the hospital violated its medical staff bylaws by requiring the plaintiff to participate in a flawed, unreasonable and unfair internal investigation and disciplinary proceeding.

The fifth count of the complaint alleges that the hospital breached the covenant of good faith and fair dealing.   Specifically, that count alleges that the investigation and disciplinary proceedings against the plaintiff were subverted through the defendants' destroying and withholding of exculpatory evidence, along with their falsifying of claims before committees established to investigate the charges against him.

The tenth count alleges that the defendants tortiously interfered with the plaintiff's contractual relations.   That count alleges that the plaintiff had contractual relationships with the patients he cared for in the greater Norwich area and, moreover, that the plaintiff had a contractual relationship with the hospital's medical staff pursuant to the hospital's medical staff bylaws.   The tenth count alleges that the defendants knew of the plaintiff's contractual relationships with the hospital's medical staff and his patients and intentionally interfered with such relationships, including the plaintiff's right to receive benefits from his membership on the hospital's medical staff.   The plaintiff alleges that his losses included more than six existing patient relationships that resulted from said patients being directed to physicians other than the plaintiff after presenting to the hospital's emergency room.

Finally, count eleven alleges common-law vexatious litigation against the hospital, Fischer, and Finley.   That count alleges that the hospital initiated an administrative complaint requesting corrective action against the plaintiff pursuant to its medical staff bylaws without probable cause.   The eleventh count alleges that the hospital, Fischer and Finley should have known that the disciplinary proceedings against him would cause him to suffer—and did result in him suffering—personal and professional reputational injury, along with financial losses.

The defendants move for summary judgment on a number of grounds:  (1) the defendants claim that (a) they are entitled to immunity under the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 et seq., and (b) the defendants Finley, Fisher, Alessi and Kalla (collectively, the individual defendants) are entitled to immunity pursuant to General Statutes § 19a–17b;  (2) the defendants argue that summary judgment should be granted on count eleven, sounding in vexatious litigation, because (a) the proceedings underlying the plaintiff's cause of action were not of the type recognized by Connecticut as forming the basis for such a claim and the proceedings against the plaintiff were instituted with probable cause, (b) Finley and Fisher, individually, are entitled to summary judgment on the eleventh count as it is undisputed that they did not initiate or procure any action against the plaintiff, (3) the hospital argues that summary judgment should be granted on the fourth and fifth counts, sounding in breaches of contract and the implied covenant of good faith and fair dealing, because there is no genuine issue of material fact that the hospital substantially complied with its staff bylaws and that it did not act in bad faith;  (4) the defendants argue that summary judgment should be granted on counts three and ten, sounding in tortious interference with business expectancies and contractual relations, because (a) the plaintiff has failed to identify any wrongful conduct occurring within the appropriate limitations period, and (b) there is no evidence that the individual defendants acted beyond the scope of their duties as agents or employees of the hospital;  and (5) the defendants argue that they are entitled to judgment on all counts of the complaint because the record does not support the plaintiff's allegations of damages, as his privileges at the hospital were never suspended or terminated.

The plaintiff counters that disputed issues of material fact remain, as to both his substantive claims and his claims for damages.   The plaintiff further argues that the defendants are not entitled to immunity under HCQIA, nor are the individual defendants entitled to immunity pursuant to § 19a–17b.   The court will address each of the parties' arguments in the order presented in the defendants' summary judgment motion.

I

HCQIA IMMUNITY

HCQIA was enacted, in part, to promote the provision of quality health care services by addressing a need to provide incentive and protection to physicians engaging in peer review.   HCQIA attempts to achieve this goal through the provision of limited immunity from private damage suits to hospitals, clinics, physicians and others engaging in the peer review process.   HCQIA immunity does not extend to an action for injunctive relief.  42 U.S.C. § 11111(a)(1)(D).

HCQIA immunity presents a question of law that may be resolved on summary judgment.  Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1332 (11th Cir.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1363, 131 L.Ed.2d 220 (1995).   For immunity to be available, a peer review action must have been taken:  (1) in the reasonable belief that it was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirements of paragraph (3).  42 U.S.C. § 1112(a).   Reasonableness, in this context, is measured by an objective standard.  Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992).   A professional review proceeding is presumed to have met these standards unless rebutted by a preponderance of the evidence.  42 U.S.C. § 11112(a).

“As the Ninth Circuit has explained, the rebuttable presumption of HCQIA section 11112(a) creates an unusual summary judgment standard that can best be expressed as follows:  ‘Might a reasonable jury, viewing the facts in the best light for [the plaintiff], conclude that he has shown, by a preponderance of the evidence, that the defendants' actions are outside the scope of § 11112(a)?’  ․ If not, the court should grant the defendant's motion.   In a sense, the presumption language in HCQIA means that the plaintiff bears the burden of proving that the peer review process was not reasonable.”  (Citation omitted.)  Bryan v. James E. Holmes Regional Medical Center, supra, 33 F.3d 1332.

The defendants argue that the plaintiff cannot establish a genuine issue of material fact that the defendants' conduct was beyond the scope of the HCQIA immunity requirements.   The plaintiff objects, arguing that he has provided sufficient evidence to rebut the presumption that the defendants have met the four criteria for HCQIA immunity.

The plaintiff raises a number of arguments in opposition to the application of HCQIA immunity, most of which the court finds unavailing.   Nevertheless, while HCQIA is intended to promote early resolution of cases, that interest should be tempered by the countervailing interest often noted by our appellate courts to afford litigants the opportunity to have factual issues decided by a jury.   See Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983) ( “litigants ordinarily have a constitutional right to have issues of fact decided by a jury”).   When addressing the scope of HCQIA immunity, our Supreme Court has noted that there is a split of authority in the federal courts as to whether the issue of immunity can be a question of fact for the jury.   See Harris v. Bradley Memorial Hospital, 306 Conn. 304, 336 n.15, 50 A.3d 841 (2012) (declining to express opinion on issue).   Given that our Supreme Court has declined to adopt a per se rule that the applicability of HCQIA immunity can never be determined by a jury, and, as its essence, the immunity test is a reasonableness standard, this court is disinclined to rule that the defendants are entitled to summary judgment so long as the plaintiff has presented an adequate foundation to raise genuine issues of material fact regarding the reasonableness of the peer review proceedings.   See, e.g., Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1999) (our Supreme Court has “consistently held that reasonableness is a question of fact for the trier to determine based on all of the circumstances”).

Here, the plaintiff has presented evidence that some of the defendants were aware of synchronization issues between electronic keycard access readers, video surveillance systems, and medical record database logs.   The intersection of these time code systems appears from the summary judgment record to be a significant factor in the preliminary investigation of the plaintiff, leading to subsequent investigative and disciplinary proceedings, including review by the hospital medical staff's Medical Executive Committee.   The plaintiff argues that the conflicting time codes, when reconciled properly, establish that it was impossible for—and thus unreasonable to believe—that the plaintiff could have printed certain medical records on April 2, 2005, the date some of the patient records at issue were allegedly improperly accessed.   Although this and other evidence, even if subsequently proven true and found in favor of the plaintiff, may not be enough to trump the presumption of HCQIA immunity in favor of the defendants, the court is mindful that it is inappropriate for it to weigh contested evidence at this stage of the proceedings.   See Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988) (“[i]n ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist”).   Accordingly, even though the court finds that the evidence presented by the plaintiff is weak, at best, summary judgment on the ground of HCQIA immunity is denied.

II

GENERAL STATUTES § 19a–17b

In many ways, § 19a–17b is simply a state counterpart to HCQIA, immunizing individuals who offer information to a hospital intended to aid in its evaluation of a health care provider.   The statute provides:  “There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person who provides testimony, information, records, documents, reports, proceedings, minutes or conclusions to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or medical review committee when such communication is intended to aid in the evaluation of the qualifications, fitness or character of a health care provider and does not represent as true any matter not reasonably believed to be true.”  General Statutes § 19a–17b(b).

Section 19a–17b(c) extends immunity to members of medical review committees:  “There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a medical review committee for any act or proceeding undertaken or performed within the scope of any such committee's functions provided that such member has taken action or made recommendations without malice and in the reasonable belief that the act or recommendation was warranted.”  General Statutes § 19a–17b(c).⁴  “[T]he immunity afforded under § 19a–17b and 19a–20 is qualified, rather than absolute, because those provisions expressly except from their purview conduct and statements that are motivated by malice.”  Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 790, 865 A.2d 1163 (2005).

The individual defendants argue that they are entitled to immunity under this statute.   The plaintiff has objected, adopting its arguments against the imposition of HCQIA immunity.   As above, the court declines to grant judgment in favor of the individual defendants at this stage of the proceedings on the ground that they are immunized pursuant to the state statute.   The plaintiff has presented sufficient evidence to raise genuine issues of material fact as to whether the individual defendants' conduct is covered by the qualified immunity provided by § 19a–17b.

III

VEXATIOUS LITIGATION

“In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute.   Both the common law and statutory causes of action [require] proof that a civil action has been prosecuted ․ The statutory cause of action for vexatious litigation exists under § 52–568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages.”  Bernhard–Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008).

“To establish a cause of action for vexatious suit, a plaintiff must prove, inter alia, that a prior suit was brought without probable cause.”  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn.App. 459, 467–68, 874 A.2d 266 (2005), aff'd, 281 Conn. 84, 912 A.2d 1019 (2007).  “The existence of probable cause is an absolute protection ․ and what facts, and whether particular facts, constitute probable cause is always a question of law.”  (Internal quotation marks omitted.)  Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).

The defendants argue that the investigation of the plaintiff was not an administrative proceeding of the type Connecticut courts require for a vexatious litigation claim.   Moreover, they argue that investigation of the plaintiff was initiated with probable cause.

The plaintiff argues in objection that the court's decision on May 2, 2012, denying the motion to strike the vexatious litigation count establishes that the internal investigatory proceedings at issue here are administrative.   The plaintiff also contends that the lack of probable cause to initiate corrective action proceedings against him is “blinding.”  (Pl.'s Obj. Brief at 33.)

The court notes the flaw in the plaintiff's argument that Judge Berger's decision on the motion to strike is the law of the case.   On a motion to strike, the court accepts the allegations of the complaint as true.   Zirinsky v. Zirinsky, 87 Conn.App. 257, 271, 865 A.2d 488, cert. denied, 273 Conn 916, 871 A.2d 372 (2005).   Thus, Judge Berger was constrained by the plaintiff's characterization of the internal investigation at issue in the present matter as an “administrative complaint” brought before an “administrative board.”   Here, on a motion for summary judgment, this court is not bound by the plaintiff's characterization of facts in the pleadings, but may consider all relevant admissible evidence in the summary judgment record.⁵

The court agrees with the defendants that the peer review proceedings brought under the hospital's medical staff bylaws and predicate investigatory proceedings in the present matter do not form the basis for a common-law vexatious litigation suit.   That is, the internal proceedings at issue in the present matter are not readily classified as civil actions for purposes of a common-law vexatious litigation claim.   Although the plaintiff is correct that our Supreme Court has recognized that a vexatious litigation cause of action can be brought when the underlying proceeding occurred outside of a courtroom;  see, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 597 A.2d 807 (1991);  the plaintiff fails to point to any Connecticut authority recognizing a vexatious litigation claim in a case such as the present one.   As noted by Judge Cosgrove when he struck the statutory vexatious litigation count in this case, in Connecticut, “the proposition that an administrative proceeding may serve as the basis for a vexatious litigation claim has only been applied thus far to administrative proceedings overseen by public, not private, entities.”   (Docket No. 134.00), citing, Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007) (internal affairs investigation of police officer);  Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d 703 (2004) (appeal of unemployment benefits hearing);  Zeller v. Consolini, 235 Conn. 417, 667 A.2d 64 (1995) (zoning application and appeal therefrom).   In fact, multiple appellate courts from our sister states have refused to extend suits for vexatious litigation or malicious prosecution to hospital disciplinary or peer review proceedings.   See, e.g., Goodman v. Samaritan Health System, 195 Ariz. 502, 508 n.8, 990 P.2d 1061 (1999); ⁶  Misischia v. St. John's Mercy Medical Center, 30 S.W.3d 848, 862 (Mo.App.E.D.2000); ⁷  but see Nicholson v. Lucas, 21 Cal.App.4th 1657, 1666, 26 Cal.Rptr.2d 778 (1994) (holding that proceedings that could deny a doctor's right to practice at a hospital could comprise an “administrative proceeding” for the purposes of malicious prosecution).   Accordingly, the court grants summary judgment on the eleventh count of the operative complaint in favor of the hospital, Fischer and Finley.⁸

IV

BREACH OF CONTRACT

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

The defendants argue that they are entitled to summary judgment on the breach of contract count because there is no issue of fact that the hospital's bylaws were substantially complied with in all material respects.   Specifically, the defendants contend that they abided by all notice and hearing requirements provided in the bylaws.   The plaintiff objects, arguing that factual issues remain as to whether the defendants complied by the bylaws and afforded him the protections provided thereunder.   The plaintiff specifically contends that his direct economic competitors exerted influence on the outcome of the proceedings at issue in the present matter and, moreover, that the defendants withheld or destroyed certain pertinent evidence in order to distort the record and deny him a fair hearing.

“Whether a contract has been breached ordinarily is a question of fact ․” (Internal quotation marks omitted.)  Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 242, 919 A.2d 421 (2007).   Although many of the provisions of the hospital's bylaws (Exh. 21) that are cited in the plaintiff's memorandum of law in opposition seemingly do not apply to the facts of the present case, or were complied with by the hospital, the hospital has not met its burden to demonstrate the absence of all genuine issues of material fact with respect to this count.   For instance, article VIII § 5.9 allows the affected practitioner the right “to call and examine witnesses, to introduce written evidence, to cross-examine any witnesses on any matter relevant to the issue of the hearing, to challenge any witness and to rebut any evidence.”   The hospital admits that on February 9, 2005, Attorney Baxter “objected to Dr. Deutsch calling Mr. Fisher and Dr. Van Nes as witnesses.”  (Exh. 1, answer to requests for admission no. 183.)   The hospital also admits that it “objected to Dr. Deutsch calling Dr. Friedman and Dr. Tramontozzi as witnesses at the internal peer review proceedings ․” (Exh. 1, answer to requests for admission no. 185.)   A fact finder could conceivably find that this and other actions on the part of the hospital denied the plaintiff a fair hearing in violation of the bylaws.   Accordingly, the court denies summary judgment on the breach of contract count as the question of whether the defendants' conduct throughout the course of the investigatory and peer review proceedings substantially complied with or breached the medical staff bylaws is a question of fact best addressed by a jury.

V

BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term ․

“To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith ․ Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive ․ Bad faith means more than mere negligence;  it involves a dishonest purpose.”  (Internal quotation marks omitted.)   Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 794–95 (2013).

Here, the plaintiff's claim is predicated on his allegations that the defendants were acting with a dishonest purpose in failing to carry out the fair hearing procedures outlined in the medical staff bylaws.  “[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Internal quotation marks omitted.)  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).   Accordingly, the court denies summary judgment on the fifth count of the complaint.

VI

TORTIOUS INTERFERENCE

“It is well established that the elements of a claim for tortious interference with business expectancies are:  (1) a business relationship between the plaintiff and another party;  (2) the defendant's intentional interference with the business relationship while knowing of the relationship;  and (3) as a result of the interference, the plaintiff suffers actual loss.”  (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011).   The elements of a claim for tortious interference with contractual relations are substantially similar.   See Appleton v. Board of Education, 254 Conn. 205, 212–13, 757 A.2d 1059 (2000).

“Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).   Summary judgment is appropriate on statute of limitation grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

“The question of whether a party's claim is barred by the statute of limitations is a question of law ․ The plaintiff's claim is governed by the tort statute of limitations set forth in [General Statutes] § 52–577, which provides:  No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.   This court has determined that [§ ]52–577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.”  (Citations omitted;  internal quotation marks omitted.)  PMG Land Associates, L.P. v. Harbour Landing Condominium Assn., Inc., 135 Conn.App. 710, 717–18, 42 A.3d 508 (2012).

The defendants argue that the present matter was commenced in May 2010, and that the plaintiff has failed to identify any wrongful conduct that occurred within the limitations period—that is, in or after May 2007.   The plaintiff objects, contending that he suffered “continuing harm” up through and subsequent to the hospital's board of trustees exonerating him on June 26, 2008.   When asked at oral argument what specific conduct occurred within the limitations period, counsel for the plaintiff remarked that the defendants' failure to come forward and “tell the truth” amounted to continuing conduct falling within the limitations period.

The plaintiff's argument is unavailing.  “Mere assertions of fact ․ are insufficient to establish the existence of a material fact ․” (Internal quotation marks omitted.)  Gold v. East Haddam, 290 Conn. 668, 678, 966 A.2d 684 (2009).   The plaintiff has identified no evidentiary support for a specific act or omission by the defendants occurring within the limitations period that can form the basis of his tortious interference claims.⁹  Therefore, the court grants summary judgment in favor of the defendants on the third and tenth counts of the complaint.¹⁰

VII

DAMAGES

The defendants note that damages are a requisite element of the plaintiff's remaining claims.   Because, the defendants contend, the plaintiff cannot establish any damages resulting from the defendants' conduct, summary judgment should be rendered on the remaining counts of the complaint.   Specifically, the defendants argue that it is undisputed that the plaintiff's privileges at the hospital were never suspended or terminated.   Furthermore, the defendants argue that the only category of damages the plaintiff identifies that could emanate from the individual defendants' alleged conduct is lost referrals.

The plaintiff objects, arguing that he has established through his own deposition testimony, financial records, and expert reports that he suffered personal and professional reputational harm, along with financial losses.

The court denies summary judgment on the claimed ground that there is no evidence of damages.  “The reasonableness of the assumptions underlying the plaintiff's damage theory is determined by the trier of fact.”  (Internal quotation marks omitted.)  Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 640, 854 A.2d 1066 (2004).   The plaintiff has provided evidence that he suffered pecuniary harm through lost referrals and that he suffered reputational harm.   As there is evidence in the record of damages that a jury may find credible, an issue of fact exists as to damages rendering summary judgment inappropriate.

CONCLUSION

For the foregoing reasons, the court grants the defendants' motion for summary judgment as to the third, tenth and eleventh counts of the complaint.   The court denies summary judgment in all other respects.

Dubay, J.

FOOTNOTES

FN1. The operative complaint is the second revised substitute complaint filed on September 30, 2011.  (Docket no. 16FN⌑2.  On January 14, 2011 the court, Cosgrove, J., struck eight counts from the then operative complaint [51 Conn. L. Rptr. 337].  (Docket no. 134.00.)   Thereafter, on May 2, 2012, the court, Berger, J., struck additional counts from the currently operative complaint [54 Conn. L. Rptr. 30].  (Docket No. 185.00.)   After the court's decisions on the motions to strike, only the claims at issue in this motion for summary judgment remained..  FN1. The operative complaint is the second revised substitute complaint filed on September 30, 2011.  (Docket no. 16FN⌑2.  On January 14, 2011 the court, Cosgrove, J., struck eight counts from the then operative complaint [51 Conn. L. Rptr. 337].  (Docket no. 134.00.)   Thereafter, on May 2, 2012, the court, Berger, J., struck additional counts from the currently operative complaint [54 Conn. L. Rptr. 30].  (Docket No. 185.00.)   After the court's decisions on the motions to strike, only the claims at issue in this motion for summary judgment remained.

FN3. Claims for injunctive relief previously were stricken by the court.   See Docket No. 185.00 at 27..  FN3. Claims for injunctive relief previously were stricken by the court.   See Docket No. 185.00 at 27.

FN4. Medical review committee is defined in § 19a–17b(a)(4), which provides:“Medical review committee” shall include any committee of a state or local professional society or a committee of any health care institution established pursuant to written bylaws, and any utilization review committee established pursuant to Public Law 89–97, and a professional standards review organization or a state-wide professional standards review council, established pursuant to Public Law 92–603, engaging in peer review, to gather and review information relating to the care and treatment of patients for the purposes of (A) evaluating and improving the quality of health care rendered;  (B) reducing morbidity or mortality;  or (C) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.   It shall also mean any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.  General Statutes § 19a–17b(a)(4)..  FN4. Medical review committee is defined in § 19a–17b(a)(4), which provides:“Medical review committee” shall include any committee of a state or local professional society or a committee of any health care institution established pursuant to written bylaws, and any utilization review committee established pursuant to Public Law 89–97, and a professional standards review organization or a state-wide professional standards review council, established pursuant to Public Law 92–603, engaging in peer review, to gather and review information relating to the care and treatment of patients for the purposes of (A) evaluating and improving the quality of health care rendered;  (B) reducing morbidity or mortality;  or (C) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.   It shall also mean any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.  General Statutes § 19a–17b(a)(4).

FN5. Moreover, “[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009)..  FN5. Moreover, “[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision ․ [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.”  (Internal quotation marks omitted.)  General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).

FN6. In Goodman, the court stated:  “As to malicious prosecution ․ it would seem impossible to have sued on this theory in the private peer review context.   Such a claim requires a previous ‘action,’ either criminal or civil, to have been maliciously brought against the claimant ․ Peer review proceedings conducted by a private association would not qualify as a civil or criminal action.”  (Citation omitted.)  Goodman v. Samaritan Health System, 195 Ariz. 502, 508 n.8, 990 P.2d 1061 (1999)..  FN6. In Goodman, the court stated:  “As to malicious prosecution ․ it would seem impossible to have sued on this theory in the private peer review context.   Such a claim requires a previous ‘action,’ either criminal or civil, to have been maliciously brought against the claimant ․ Peer review proceedings conducted by a private association would not qualify as a civil or criminal action.”  (Citation omitted.)  Goodman v. Samaritan Health System, 195 Ariz. 502, 508 n.8, 990 P.2d 1061 (1999).

FN7. In Misischia, the court stated:  “We decline to extend a claim for malicious prosecution in this area, as we agree with the trial court's conclusion that the procedure utilized by [the hospital] in the case at bar does not constitute an ‘administrative proceeding’ for malicious prosecution purposes.   The term ‘administrative proceeding’ means a proceeding before a public agency or public corporation for purposes of malicious prosecution claims, and disciplinary proceedings by private employers do not constitute such.”  Misischia v. St. John's Mercy Medical Center, 30 S.W.3d 848, 862 (Mo.App.E.D.2000)..  FN7. In Misischia, the court stated:  “We decline to extend a claim for malicious prosecution in this area, as we agree with the trial court's conclusion that the procedure utilized by [the hospital] in the case at bar does not constitute an ‘administrative proceeding’ for malicious prosecution purposes.   The term ‘administrative proceeding’ means a proceeding before a public agency or public corporation for purposes of malicious prosecution claims, and disciplinary proceedings by private employers do not constitute such.”  Misischia v. St. John's Mercy Medical Center, 30 S.W.3d 848, 862 (Mo.App.E.D.2000).

FN8. Having made this determination, it is unnecessary for the court to examine the defendants' alternate arguments as to why they are entitled to summary judgment as to count eleven..  FN8. Having made this determination, it is unnecessary for the court to examine the defendants' alternate arguments as to why they are entitled to summary judgment as to count eleven.

FN9. Notably, in his memorandum of law in opposition to the defendants' summary judgment motion, the plaintiff failed to argue that any statute of limitations tolling doctrine applies to the present case..  FN9. Notably, in his memorandum of law in opposition to the defendants' summary judgment motion, the plaintiff failed to argue that any statute of limitations tolling doctrine applies to the present case.

FN10. Having made the determination that the defendants are entitled to summary judgment for tortious interference with contractual relationships on statute of limitations grounds, it is unnecessary for the court to analyze the defendants' additional argument that there is no evidence that the individual defendants acted beyond the scope of their duties as agents and employees of the hospital..  FN10. Having made the determination that the defendants are entitled to summary judgment for tortious interference with contractual relationships on statute of limitations grounds, it is unnecessary for the court to analyze the defendants' additional argument that there is no evidence that the individual defendants acted beyond the scope of their duties as agents and employees of the hospital.

Dubay, Kevin G., J.