chase v. gifford

• Court: Vermont Superior Court
• Decided: February 15, 2024
• Docket: 23-cv-2477
• Status: Published

Opinion

SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-02477 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org

Derek Chase, MD v. Gifford Medical Center, Inc.

Opinion and Order on Defendant’s Partial Motion to Dismiss

Plaintiff Derek Chase is a physician who was formerly employed by

Defendant Gifford Medical Center, Inc. His employment was terminated, and he

brought this Complaint against Defendant seeking damages and declaratory relief

in connection with his employment and termination. Dr. Chase is represented by

Christina Nolan, Esq., and Heather Ross, Esq. Gifford is represented by Elizabeth

Rattigan, Esq., and Brendan Sage, Esq.

Pending before the Court is Gifford’s partial motion to dismiss. Gifford seeks

dismissal of Plaintiff’s claim asserting intentional infliction of emotional distress

(IIED). Gifford contends that the facts alleged do not rise to level needed to state an

IIED claim. It also moves to dismiss Plaintiff’s claims seeking declaratory relief.

Gifford argues primarily that those claims are moot. Dr. Chase opposes the motion.

Both sides have presented written and oral arguments to the Court. Based on those

submissions, the Court makes the following determinations.

I The Legal Standard

While the United States Supreme Court has relaxed somewhat the standard

for granting motions to dismiss under Fed. R. Civ. P. 12(b)(6), Bell Atlantic Corp. v.

1 Twombly, 550 U.S. 544, 560–63 (2007), the Vermont Supreme Court has proceeded

in the opposite direction with regard to motions under Vt. R. Civ. P. 12(b)(6). The

Vermont Supreme Court disfavors motions to dismiss. Ass’n of Haystack Prop.

Owners v. Sprague, 145 Vt. 443, 446–47 (1985) (such motions are to be “rarely

granted”). “Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt

that there exist no facts or circumstances consistent with the complaint that would

entitle Plaintiff to relief.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 576 (mem.)

(citing Union Mut. Fire Ins. Co. v. Joerg, 2003 VT 27, ¶ 4, 175 Vt. 196, 198)).

In considering a motion to dismiss, the Court “assume[s] that all factual

allegations pleaded in the complaint are true, accept[s] as true all reasonable

inferences that may be derived from plaintiff’s pleadings, and assume[s] that all

contravening assertions in defendant’s pleadings are false.” Mahoney v. Tara, LLC,

2011 VT 3, ¶ 7, 189 Vt. 557, 559 (mem.) (internal quotation, brackets, and ellipses

omitted). It is not required to accept bald legal conclusions unsupported by any

factual allegations, however. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10, 184 Vt. 1, 9.

As a consequence, the threshold a plaintiff must meet to satisfy the notice-

pleading standard under Vt. R. Civ .P. 8 is “exceedingly low.” Huntington Ingalls

Indus., Inc. v. Ace Am. Ins. Co., 2022 VT 45, ¶ 40 (citing Bock, 2008 VT 81, ¶ 4, 184

Vt. at 576 (mem.)).

II. Dr. Chase’s Facts

As alleged in the Complaint, the facts are as follows. Dr. Chase is an

orthopedic surgeon who started working at Gifford in 2017. In 2019, he received a

2 “glowing medical staff performance evaluation.” His most recent employment

agreement was for a one year, with an automatically renewable term, which could

be terminated without cause on 90 days’ notice. The agreement obligated Gifford to

provide Dr. Chase with professional liability insurance during his employment.

In late 2020, Dr. Chase refused to continue working on a surgical fracture

table that he deemed unsafe, and he raised other patient care and safety concerns

with Gifford. Gifford reacted with hostility. Two weeks later, Gifford threatened to

subject Dr. Chase to a peer review or a performance improvement plan for medical

charts that Gifford falsely claimed were deficient. In June 2021, Dr. Chase

reiterated his patient confidentiality concerns. A week later, he was placed on a

performance improvement plan for being delinquent with medical charts, though

there was, in fact, no tardiness. The following month, he was told that he would be

put on another improvement plan for the same (baseless) reason.

A few months later, Dr. Chase was asked to attend a peer review meeting at

which it was alleged, falsely, that he had failed to write follow-up orders for a

specific patient. He was told he would be subject to yet another improvement plan

as well as “open-ended monitoring of his charts.” Shortly thereafter, Gifford filed a

claim against Dr. Chase with the Vermont Medical Practice Board (the “Board”)

that had no legitimate basis.

Dr. Chase hired legal counsel. Gifford later withdrew the performance

review plan, the peer review, and its complaint with the Board.

3 On April 8, 2022, Gifford terminated Dr. Chase’s employment. It threatened

to terminate his liability insurance and suspend his clinical privileges immediately.

To embarrass and humiliate Dr. Chase, Gifford falsely told third parties that he

was “escorted out of the building upon his termination.” Gifford denied him the

ability to transition his patients’ care. These actions caused treatment to be

delayed for Dr. Chase’s patients, who had to be transferred to other facilities, which

made them dissatisfied and upset with Dr. Chase. Gifford also destroyed Dr.

Chase’s personal health records, which were in his office, along with destroying gifts

of appreciation Dr. Chase had received from past patients. All of these acts caused

Dr. Chase substantial emotional upset and damaged his professional reputation.

III. Intentional Infliction of Emotional Distress

Gifford argues that the allegations of the Complaint, even indulging all

inferences in their favor, fall short of the extreme conduct that is necessary to

support an IIED cause of action. Dr. Chase counters that this was no mere

termination. He contends that Gifford’s conduct was extreme and intolerable and

caused him extreme emotional distress.

To survive dismissal of an IIED claim, a plaintiff must allege: “(1) conduct

that is extreme and outrageous; (2) conduct that is intentional or reckless; and (3)

conduct that causes severe emotional distress.” Baptie v. Bruno, 2013 VT 117, ¶ 24,

195 Vt. 308, 318. To satisfy the outrageousness element, the defendant’s behavior

must “surpass the bounds of decency that can be tolerated in a civilized society.”

Fromson v. State, 2004 VT 29, ¶ 15, 176 Vt. 395; see also Restatement (Second) of

4 Torts § 46, cmt. d (1965). A plaintiff must also allege that the defendant’s actions

caused him to suffer “distress so severe that no reasonable person could be expected

to endure it.” Baldwin v. Upper Valley Services, Inc., 162 Vt. 51, 57 (1994).

In the specific context of employment, “mere termination of employment will

not support a claim for intentional infliction of emotional distress.” Crump v. P & C

Food Markets, Inc., 154 Vt. 284, 296 (1990); Baldwin v. Upper Valley Servs., Inc.,

162 Vt. 51, 56 (1994). Similarly, conduct that often attends termination of

employment, including “insult, indignities, and annoyances” do not rise to the level

of extreme and outrageous conduct. Denton v. Chittenden Bank, 163 Vt. 62, 66–67

(1994). But, “if the manner of termination evinces circumstances of oppressive

conduct and abuse of a position of authority vis-a-vis plaintiff it may provide

grounds for the tort action.” Crump, 154 Vt. 296. Lastly, a plaintiff may not bundle

together separate acts to increase by multiplication the level of the alleged

misconduct. There must be at least one incident that “transcends the ignoble and

vast realm of unpleasant and often stressful conduct in the workplace.” Fromson,

2004 VT 29, ¶ 15, 176 Vt. at 400.

Here, while Dr. Chase alleges various alleged wrongful acts towards him over

time, the Court’s focus is on a single event, his termination. In that regard, Dr.

Chase claims that his termination was augmented by the highly outrageous

additional conduct of Gifford, which included:

● Telling him he was immediately banned from the hospital;

● Telling him he could not coordinate the transfer of care for his patients;

5 ● Destroying his personal property in his office, which included cards/gifts of thanks from grateful patients;

● Destroying his own personal health-care records from his office;

● Telling him that his malpractice insurance was being immediately ended; and

● Falsely telling third parties that Dr. Chase had to be escorted off the hospital grounds.

Though the standard for stating an IIED claim is exacting, at this stage, Dr.

Chase enjoys the benefit that all factual allegations and all reasonable interferences

drawn from them are construed wholly to his benefit. In keeping with that, the

Court must assume that the conduct described above is highly unusual for a

termination in the medical profession, that telling third parties of being escorted

from the premises could impact Dr. Chase’s standing in the greater community and

for other employment, that denying him the ability to transition care for his

patients would cause him extreme concern for the ongoing safety of his patients,

that destruction of personal health records and personal property of the type

described would also cause a person great emotional pain. This conduct, on the

present record, cannot be assumed to be de rigueur in this context. Viewed in Dr.

Chase’s favor, such conduct goes well beyond mere indignities associated with a

standard termination. The alleged actions reflect the type of “oppressive conduct

and abuse of a position of authority vis-a-vis plaintiff” that Crump suggests can

suffice to establish IIED. Crump, 154 Vt. 296.

The motion to dismiss the IIED claim is denied.

6 IV. Declaratory Judgment Claims

Gifford also moves to dismiss Counts VII to IX of the Complaint for failure to

state claims and/or for mootness. In those Counts, Dr. Chase seeks declaratory

relief concerning the report Gifford made about him to the Board and Gifford’s

institution of a peer review concerning him. Gifford maintains that it was required

to make the report to the Board and that, in any event, as both the report and the

peer review were withdrawn, no live controversy remains between the parties.

As to the assertion that it was required to make the report, the record does

not support that conclusion. Gifford argues that it had to report Dr. Chase to the

Board under 26 V.S.A. § 1317(b)(3)(C). That provision requires a hospital to file a

report identifying:

(3) Acts or omissions of the licensee that occur in the course of practice and result in one or more of the following:

. . .

(C) Written discipline that constitutes a censure, reprimand, or admonition, if it is the second or subsequent censure, reprimand, or admonition within a 12-month period for the same or related acts or omissions that previously resulted in written censure, reprimand, or admonition. The same or related acts or omissions includes similar behavior or behavior involving the same parties, or both. Oral censure, oral reprimand, and oral admonition are not considered reportable disciplinary actions, and notation of an oral censure, oral reprimand, or oral admonition in a personnel or supervisor’s file does not transform the action from oral to written.

Accordingly, to justify a mandatory report, there must have been at least two events

of a similar nature leading to written discipline within a 12-month period.

7 Based on the Complaint, in December 2020, Gifford threatened to subject Dr.

Chase to a peer review or performance improvement plan for allegedly delinquent

charts. In July 2021, Gifford actually imposed such a performance plan. In August

2021, Gifford threatened to impose a second improvement plan for the same

reason—but it did not. These are the “two” incidents of written discipline that

Gifford claims required it to file the report with the Board. Plainly, however, there

was one incident that happened; the other was only threatened. Gifford’s claim that

it had no choice but to file the report has no merit based on the allegations.

Gifford also contends: “There is no dispute that the report to the Board and

the peer review are over and done with, and that they no longer have any potential

to affect any rights of Plaintiff.” On that basis, Gifford maintains the issues are

moot. The Court disagrees.

“The Declaratory Judgment Act allows parties who have a dispute within a

court’s jurisdiction to petition that court for declaratory relief at an early stage of

the proceedings; however, the Act does not increase or enlarge the jurisdiction of the

court over any subject matter or parties.” Vermont State Employees’ Ass’n, Inc. v.

Vermont Crim. Just. Training Council, 167 Vt. 191, 194 (1997); see also Anderson v.

State, 168 Vt. 641, 643 (1998) (“The purpose of a declaratory judgment is to provide

a declaration of rights, status, and other legal relations of parties to an actual or

justiciable controversy.”). “A declaratory judgment will issue if it serves the useful

purpose of clarifying the legal relations of the parties or terminating the insecurity

8 and uncertainty of the controversy.” Coop. Fire Ins. Ass’n of Vermont v. Bizon, 166

Vt. 326, 331 (1997).

Here, at page 8 of Gifford’s Reply Memorandum, it concedes that the

allegations of a sham report and peer review process would be relevant to Plaintiff’s

IIED claim. Though Gifford presumed that the IIED claim would be dismissed, it

has not been. On this basis alone, the claims for declaratory relief in that regard

present an ongoing controversy that cannot be dismissed at this juncture.

Gifford further argues that there is no justiciable controversy over the report

and peer review process in relation to Dr. Chase’s other claims. These arguments

are to some extent nuanced and depend on Gifford’s view of the facts and policy

positions as to relevant statutory provisions. They will be better addressed once the

evidence is developed. It suffices to say that, at this point, the Court cannot

conclude the allegedly false report to the Board and sham peer review would have

no ongoing relevance to a number of Plaintiff’s other claims as well as his IIED

cause of action.

The Court appreciates the policy concerns raised by Gifford in connection

with preserving the immunity of such professional review processes. The concerns

are legitimate and significant. But those protections are qualified, not absolute.

See 26 V.S.A. § 1317(e) (bad faith report to Board not shielded from liability); 26

V.S.A. § 1442(a) (bad faith conduct related to peer review committee not shielded

from liability); 42 U.S.C. § 11112(a) (no liability shield for professional review action

undertaken in bad faith). At this stage, Dr. Chase’s allegations potentially fall

9 within the ambit of the exceptions to the general cloak of immunity that exists for

such proceedings.1

V. Conclusion

Based on the foregoing, Defendant’s partial motion to dismiss is denied.

Counsel are to confer and submit a proposed Discovery/ADR schedule within 21

days.

Electronically signed on Thursday, January 4, 2024, per V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi Superior Court Judge

1 To the extent Gifford additionally argues that the federal statute is not implicated because its peer review process did not have an impact on Dr. Chase’s position or status, the Court is not persuaded. The statute focuses on actions that “may” have such an impact, and the allegations here are sufficiently broad to support such an inference. 42 U.S.C. § 11151(9) (defining “professional review action,” in part, as an action “which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician”); see Vt. R. Civ. P. 9(b) (“Malice, intent, knowledge, and other condition of mind of a person may be averred generally.”). In any event, if the statute did not apply to the process in this instance, the qualified privilege also would not apply. 10