King v. Central Maine Medical Center

• Court: Superior Court of Maine
• Decided: September 28, 2016
• Docket: ANDcv-16-061
• Status: Unpublished

Opinion

STATE OF MAINE FILED SUPERIOR COURT ANDROSCOGGIN, SS,RECEIVED & CIVIL ACTION SEP 2 S 20\6 DOCKET NO. AUBSC-CV-16-06J A/VD - 4 (J lj -q -2$- I& CHRISTOPHER KING ANOROSCOG¥\~T SUP ERIOR CO}J • Plaintiff, ) ORDER ON DEFENDANT'S ) MOTION TO DISMISS COUNT II v. ) OF PLAINTIFF'S AMENDED ) COMPLAINT & PLAINTIFF'S CENTRAL MAINE MEDICAL ) MOTION FOR LEAVE TO FILE CENTER, ) A SUPPLEMENTAL PLEADING ) Defendant. )

Presently before the Court are the following motions: (1) Defendant Central

Maine Medical Center's ("CMMC") motion to dismiss Count II of Plaintiff Christopher

King's amended complaint pursuant Maine Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted; and (2) Plaintiff's "motion for leave to

file an amended or supplemental pleading." For the reasons discussed below, CMMC's

motion to dismiss is denied. Plaintiff's motion for leave to file a supplemental pleading

is granted.

I. BACKGROUND Plaintiff's amended complaint alleges the following facts. Plaintiff is a registered

nurse licensed by the Maine State Board of Nursing (the "Board"). (Am. Compl. 'JI 1.)

Plaintiff was employed at CMMC from March 2010 until he was fired on May 22, 2014.

(Id. 'lI'lI 3 20.) Plaintiff alleges that he repeatedly reported to CMMC administrators that 1

the nurse staffing levels in the emergency department were inadequate and posed a

substantial risk to patients. (Id. 'lI'lI 7-19.) King alleges that he was fired in retaliation for

his reports. (Id. 'JI 21.)

By letter dated July 91 2014, the Board notified Plaintiff that it had opened an

) investigation of him for violations of the Nursing Practice Act. (Id. 'JI 28.) The Board's

Page 1 of 11 11 investigation was prompted by a report from CMMC, conveying CMMC's "suspicion

that Plaintiff had committed certain misconduct. (Id. <[ 30.) Plaintiff asserts that the

alleged misconduct that was the basis of the investigation was conduct within the scope

of his employment at CMMC. (Id. <[ 29.) Plaintiff asserts that the Board concluded on

October 8, 2015, that the evidence did not support CMMC's "suspicion" as described in

the report. (Id. <[ 31.) Plaintiff conceded that, at the time his complaint was filed, the

Board's investigation remained open and he remained subject to potential discipline by

the Board. (Id. <[ 32.)

Plaintiff filed a two-count complaint against CMMC on May 11, 2016. Plaintiff's

complaint asserts claims for violations of the Maine Whistleblower's Protection Act (the

"MWPA") (Count I) and for indemnity under§ 714 of the Maine Nonprofit Corporation

Act (the "MNCA") (Count II). CMMC moved to dismiss both counts on June 61 2016.

Plaintiff filed an amended complaint on June 22, 2016. The amended complaint

resolved the issues raised in CMMC's motion to dismiss regarding Count I.

CMMC filed a motion to dismiss the amended complaint on July 5, 2016.

CMMC's motion to dismiss the amended complaint sought to dismiss only Count II for

indemnity under §714 of the MNCA. CMMC argued that Plaintiff's claim for

indemnity pursuant to§ 714 failed to state a claim for two reasons: (1) Plaintiff was not

entitled to indemnification under § 714 because there had been no final disposition by

the Board;1 and (2) CMMC is immune from liability for making reports to the Board

1 CMMC incorrectly labels its first argument as an argument regarding the doctrine of ripeness. The doctrine of ripeness "concerns the fitness of the issue for judicial decision." Waterville Indus., Inc. v. Fin. Auth. of Me., 2000 ME 138, CJI 22, 758 A.2d 986 (internal citation and quotation marks omitted). "A case is ripe for judicial decision when there exists a genuine controversy between the parties that presents a concrete, certain, and immediate legal problem." Id. (internal citation and quotation marks omitted). Here, there is a concrete, certain, and immediate legal problem between the parties: whether Plaintiff is entitled to indemnity under

Page 2 of 11 under §2511 of the Maine Health Security Act (the "MHSA"). (Def. Mot. Dismiss 1-2.)

Alternatively, Defendant requested the court stay this action pending resolution of the

appeal in Lalonde v. Central Maine Medical Center, AUBSC-CV-15-078. (Id. at 2.) Oral

argument on Defendant's motion to dismiss was held on August 30, 2016.

On August 29, 2016, the day prior to oral argument, Plaintiff filed a "motion for

leave to file an amended or supplemental pleading." In his motion, Plaintiff avers that

the Board held an adjudicatory hearing on August 25, 2016, which resulted in Plaintiff's

complete exoneration of any misconduct. (Pl. Mot. for Leave to Supplement 2.)

Plaintiff asserts that the Board's August 25, 2016 decision completely resolves CMMC's

first basis for dismissing Count II. (Id.) Plaintiff acknowledges that the Board's August

25, 2016 decision does not affect Defendant's claim of immunity. (Id. at 2 n.2.)

CMMC did not file an opposition to Plaintiff's "motion for leave to file an

amended or supplemental pleading." Plaintiff's motion was discussed at the August

30, 2016 oral argument on CMMC's motion to dismiss. CMMC did not oppose

Plaintiff's motion, but reiterated its argument that Count II did not state a claim for

indemnity under§ 714 because there had been no final disposition by the Board when

the amended complaint was filed. CMMC asserted that it was still necessary for the

court to determine whether Plaintiff's amended complaint stated a claim for indemnity

prior to the Board's August 25, 2016 decision, because otherwise, CMMC could be liable

for interest on any judgment in Plaintiff's favor dating back to the date of the original

complaint under the relation back provision of Maine Rule of Procedure lS(c).

_) §714 of the MNCA. CMMC's first argument does not involve ripeness and is simply an argument that Plaintiff's complaint fails to state a claim for indemnity under§ 714.

Page 3 of 11 IL PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL PLEADING

The court first addresses Plaintiff's "motion for leave to file an amended or

supplemental pleading." Maine Rule of Civil Procedure 15(d) provides:

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party pleads to the supplemental pleading, it shall so order, specifying the time therefor.

M.R. Civ. P. 15(d) (emphasis supplied). Because the new allegations in Plaintiff's

motion occurred after the filing of his initial and amended complaints, Plaintiff's

motion is one for leave to supplement a pleading, not to amend.

The court will ordinarily grant a motion to file supplemental pleading unless the

opposing party can show that their position will be prejudiced or that the litigation will

be unreasonably delayeJ. Rancourt v. City of Dangor, 400 A.2d 354, 356 (Me. 1979).

Because CMMC has not expressed any opposition to the motion and there is no

evidence that CMMC will be prejudiced or the litigation will be delayed, Plaintiff's

motion for leave to file a supplemental pleading shall be granted.

III. CMMC'S MOTION TO DISMISS

As previously discussed, CMMC argues that Plaintiff's amended complaint fails

to state a claim for indemnity pursuant to § 714 for two reasons: (1) Plaintiff was not

entitled to indemnification under§ 714 because there had been no final disposition by

the Board; and (2) CMMC is immune from liability for making reports to the Board

under§ 2511 of the MHSA. (Def. Mot. Dismiss 1-2.)

Page 4 of 11 ) A Standard of Review

The court shall dismiss a civil action when the complaint fails "to state a claim

upon which relief can be granted." M.R. Civ. P. 12(b)(6). A motion to dismiss for

failure to state a claim tests the legal sufficiency of a complaint. State v. Weinschenk, 2005

ME 28,

Cummings, 2008 ME 18,

claim, the facts are not adjudicated. Marshall v. Town of Dexter, 2015 ME 135,

A.3d 1141. The court reviews the material allegations in the complaint in the light most

favorable to the plaintiff to determine whether it sets forth elements of a cause of action

or alleges facts that, if proven, would entitle the plaintiff to relief pursuant to some legal

theory. Bean, 2008 ME 18,

beyond a doubt that the plaintiff is not entitled to relief under any set of facts that the

plaintiff might prove in support of his or her claim. Id.

B. Whether there has been a Final Disposition

Section 714 of the MNCA generally provides nonprofit corporations with the

power to indemnify its employees in "any threatened, pending or completed action,

suit or proceeding, whether civil, criminal, administrative or investigative," brought

against the employee by reason of the their employment by the corporation, provided

the employee meets the applicable standard of conduct set forth in the subsection. 13-B

M.R.S. § 714(1). Subsection 714(2) further provides, in relevant part:

[T]o the extent that [an] ... employee ... of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsection 1, or in defense of any claim, issue or matter therein, [the employee] shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred by him in connection therewith.

) Id. § 714(2) (emphasis supplied).

Page 5 of 11 Subsection 714(4) provides, in relevant part:

Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the cotporntion in advance of the final disposition. of such action, suit or proceeding as authorized by the board of directors in the manner provided in subsection 3 upon receipt of an undertaking by or on behalf of the ... employee ... to repay such amount, ...

Id. § 714(4) (emphasis supplied).

In its motion to dismiss, CMMC argued that Plaintiff's amended complaint

explicitly alleged that the Board's investigation "remains open" and that Plaintiff

"remains subject to potential discipline." (Def. Mot. Dismiss 1); see (Am. Compl

Thus, according to CMMC, prior to August 25, 2016, there had been no final disposition

by the Board, and therefore, Plaintiff had not been successful on the merits before the

Board in order to obtain indemnity under§ 714. (Id. at 1-2.) CMMC asserted that, prior

to a final disposition by the Board, any advanced payment of Plaintiff's expenses for

defending himself was within the discretion of CMMC' s board of directors. (Id. at 2.)

Therefore, according to CMMC, Plaintiff's complaint failed to state a claim for

indemnification under§ 714 at the time it was filed. (Id.)

As discussed above, Plaintiff's motion for leave to supplement his pleading avers

that the Board issued a final disposition in his favor on August 25, 2016. (Pl. Mot. for

Leave to Supplement 2.) The court has granted Plaintiff's motion for leave to file a

supplemental pleading to allege that new fact. Therefore, CMMC's argument that

Plaintiff has failed to state a claim for indemnity under§ 714 because there has been no

final disposition by the Board is now moot.

At oral argument, however, CMMC asserted that, though there has been a final

disposition by the Board, the court must still decide whether the amended complaint

stated a claim at the time it was filed, because otherwise, CMMC could be liable for

Page 6 of 11 interest on a judgment in Plaintiff's favor dating back to the date of the original

complaint under the relation back provision of Maine Rule of Procedure lS(c).

Rule lS(c) provides:

An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the condition of paragraph (2) of this subdivision is satisfied and, within the period provided by Rule 3 for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

M.R. Civ. P. 15(c). Although Rule 15(c) speaks only of amendments to a pleading, its

relation back provisions are applicable to supplemental pleadings under Rule lS(d) as

well. 2 Harvey, Maine Civil Practice§ 15:7 at 490-91 (3d ed. 2011).

Here, Plaintiff's supplemental pleading does not relate to statutes of limitation,

does not seek to change the party or the name of a party against whom a claim is

asserted, and does not assert a new claim arising out of the same transaction or

occurrence. Plaintiff's supplemental pleading merely asserts a new factual allegation

that occurred after the Plaintiff's amended complaint was filed that now moots one of

CMMC's arguments in support of its motion to dismiss for failure to state a claim.

Thus, the relation back doctrine under Rule 15(c) does not appear to apply to this

circumstance.

Moreover, as previously discussed, a motion to dismiss for failure to state a claim

) tests the legal sufficiency of a complaint. Weinschenk, 2005 ME 28,

Page 7 (!f 11 On a motion to dismiss for failure to state a claim, the facts are not adjudicated.

Marshall, 2015 ME 135,

the light most favorable to the plaintiff to determine whether the plaintiff has alleged

sufficient facts that, if proven, would entitle the plaintiff to relief pursuant to some legal

theory. Bean, 2008 ME 18,

Thus, whether Defendant would liable for interest dating back to the filing of the

complaint or the filing of the supplemental pleading is a question of fact that the court

need not decide on a motion to dismiss. That issue may be more appropriately

addressed on summary judgment or at trial. The sole issue before the court on this

motion to dismiss is whether Plaintiff has set forth sufficient facts entitling him to relief

under some legal theory. Here, Plaintiff has alleged sufficient facts in his amended

complaint and his forthcoming supplemental pleading establishing a claim for

indemnity under§ 714 of the MNCA.

C. Immunity

CMMC also asserts that it is absolutely immune from liability for making a

report to the Board under§ 2511 of the MHSA. (Def. Mot. Dismiss 2.) Section 2511 of

the MHSA provides:

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:

... For making any report or other information available to any board, appropriate authority, professional competence committee or professional review committee pursuant to law;

24 M.R.S. § 2511(1) (emphasis supplied).

This court has previously held that §2511 of the MHSA confers absolute

immunity on persons or entities listed in the statute for making a report or providing

Page 8 of 11 information to any board, authority, profession competence committee or professional

review committee pursuant to law. Strong v. Bausman, 2015 Me. Super. LEXIS 110, at *6

(May 5, 2015), aff'd, Strong v. Brakeley, 2016 ME 60, 137 A.3d 1007.

The MHSA defines a "health care provider" as "any hospital, ... in which skilled

nursing care or medical services are prescribed by or performed under the general

direction of persons licensed to practice medicine ... in this State and that is licensed or

otherwise authorized by the laws of this State." 24 M.R.S. § 2502(2).

Section 2506 of the MHSA provides:

A health care provider or health care entity shall, within 60 days, report in writing to the disciplined practitioner's board or authority the name of any licensed, certified or registered employee or ... whose employment ... have been revoked, suspended, limited or terminated . . . for reasons related to clinical competence or unprofessional conduct,

24 M.R.S. § 2506 (emphasis supplied).

Thus, under the § 2511 of the MHSA, CMMC is absolutely immune from civil

liability for reporting the termination of a registered nurse for reasons of unprofessional

conduct to the Maine State Board of Nursing pursuant to § 2506 of the MHSA.

However, viewing the amended complaint in the light most favorable to

Plaintiff, Count II of the amended complaint does not seek to hold CMMC liable for the

actual act of reporting its "suspicion" to the Board. Rather, Plaintiff's amended

complaint seeks to enforce his statutory right to be indemnified for successfully

defending himself in an action before the Board allegedly brought by reason of his

employment with CMMC. The fact that it was CMMC's report to the Board that

prompted the investigation is not .an essential fact of Plaintiff's claim for indemnity

under§ 714 of the MNCA. Therefore, because Plaintiff's claims against CMMC are not

"for making any report or other information available" to the Board, but for indemnity,

Plaintiff's claims are not barred by§ 2511 of the MHSA.

Page 9 of 11 D. Stay pending the appeal of Lalonde v. Center Maine Medical Center

This court recently reached a similar conclusion on a motion to dismiss in Lalonde

v. Cen ter Maine Medical Center, AUBSC-CV-15-078. In that case, this court concluded

that a doctor's complaint for indemnification for successfully defending himself before

the Maine Board of Licensure in Medicine was not barred by immunity under§ 2511.

Like this case, the court concluded the fact that the licensing board's action against the

doctor was prompted by a report by CMMC to the board was not an essential fact to the

doctor's claim. Like this case, the doctor was not seeking to hold CMMC liable for the

actual act of reporting the doctor to the licensing board. Like this case, the doctor's

complaint was seeking to enforce his right to indemnification.

According to CMMC, the court's denial of the motion to dismiss in Lalonde is

presently on appeal to the Law Court. (Def. Mot. Dismiss 2.) Because of the similarities

between these cases, CMMC asks that the court stay this case pending a decision by the

Law Court in Lalonde on the issue of immunity. (Id.) CMMC cites no authority in

support of its request for a stay pending the resolution of an appeal in an unrelated

case. (Id.)

CMMC' s appeal of the denial of their motion to dismiss in Lalonde is an

interlocutory appeal. See Efstathiou v. Aspinquid, Inc., 2008 ME 145,

("The denial of a motion to dismiss is not a final judgment, and ordinarily we would

dismiss the appeal from the denial as an interlocutory appeal."). Unless an issue raised

by an interlocutory appeal meets one of the Law Court's limited exceptions to the final

judgment rule, the Court will ordinarily dismiss the appeal. Irving Oil, Ltd. v. ACE INA

Ins., 2014 ME 62,

Because CMMC's appeal in Lalonde is interlocutory and may be denied, the Law

Court's decision in Lalonde may not actually resolve the question of whether § 2511 of

Page 10 of 11 the MHSA bars Plaintiff's claim for indemnity. Moreover Plaintiff's amended

complaint is not limited to his claim for indemnity. Count I of Plaintiff's complaint

alleges violations of the MWP A. (Am. Compl. qp]I 22-26.) It would be unfairly

prejudicial to Plaintiff to require that he await a decision by the Law Court in an

unrelated case, which may not even resolve the relevant issue, before proceeding with

his claims for violations of MWP A and indemnity. Therefore, the court declines to stay

this action pending resolution of the appeal in Lalonde.

IV. CONCLUSION

Plaintiff Christopher King's motion for leave to file a supplemental pleading is

granted. Defendant Central Maine Medical Center shall be permitted to file a

supplemental answer within twenty (20) days after service of the supplemental

pleading upon Defendant.

Defendant Central Maine Medical Center's motion to dismiss Count II of Plaintiff

Christopher King's amended complaint is denied. Defendant Central Maine Medical

Center's request for a stay is also denied.

The Clerk is directed to enter this Order on the civil docket by reference pursuant

to Rule 79(a) of the Maine Rules of Civil Procedure.

Date:

Page 11 of 11 CHRISTOPHER KING - PLAINTIFF SUPERIOR COURT ANDROSCOGGIN, ss. Attorney for: CHRISTOPHER KING Docket No AUBSC-CV-2016-00061 - ''f_ISTOPHER TAINTOR - RETAINED JMAN HANSON & DETROY LLC TWO CANAL PLAZA DOCKET RECORD PO BOX 4600 PORTLAND ME 04112-4600

VS CENTRAL MAINE MEDICAL CENTER - DEFENDANT

Attorney for: CENTRAL MAINE MEDICAL CENTER MICHAEL POULIN - RETAINED 06/06/2016 SKELTON TAINTOR & ABBOTT 9 5 MAIN STREET AUBURN ME 04210

Filing Document: COMPLAINT Minor Case Type: OTHER STATUTORY ACTIONS Filing Date: 05/11/2016

Docket Events: 05/11/2016 FILING DOCUMENT - COMPLAINT FILED ON 05/11/2016

05/11/2016 Party(s): CHRISTOPHER KING ATTORNEY - RETAINED ENTERED ON 05/11/2016 Plaintiff's Attorney: CHRISTOPHER TAINTOR ; vo/03/2016 Party(s): CENTRAL MAINE MEDICAL CENTER SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 05/17/2016 THROUGH MICHAEL POULIN, ESQ.

06/03/2016 Party(s): CENTRAL MAINE MEDICAL CENTER SUMMONS/SERVICE - ACCEPTANCE OF SERVICE FILED ON 05/31/2016

06/08/2016 Party(s): CENTRAL MAINE MEDICAL CENTER MOTION - MOTION TO DISMISS FILED ON 06/06/2016 DEFENDANT WITH PROPOSED ORDER

06/08/2016 Party(s): CENTRAL MAINE MEDICAL CENTER MOTION - MOTION TO IMPOUND FILED ON 06/06/2016 TO IMPOUND EXHIBIT TO MOTION TO DISMISS

06/17/2016 Party(s): CENTRAL MAINE MEDICAL CENTER MOTION - MOTION TO IMPOUND GRANTED ON 06/16/2016 MARYGAY KENNEDY, JUSTICE THE COURT HEREBY ORDERS THAT EXHIBIT A APPENDED TO THE DEFENDANT'S MOTION TO DISMISS SHALL BE SEALED AND TREATED AS CONFIDENTIAL BY THE COURT AND THE PARTIES UNTIL FURTHER ORDER. COPIES TO PARTIES

06/17/2016 Party(s): CENTRAL MAINE MEDICAL CENTER ATTORNEY - RETAINED ENTERED ON 06/06/2016 Defendant's Attorney: MICHAEL POULIN I I .I Page 1 of 2 Printed on: 09/28/2016