UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Loretta-Azuka: Obi, Plaintiff
v. Case No. 18-cv-550-SM Opinion No. 2019 DNH 087 Exeter Health Resources, Inc.; Core Physicians LLC; and Barton & Associates, Inc., Defendants
O R D E R
Pro se plaintiff, Dr. Loretta-Azuka: Obi, MD, brings this
action against three corporate defendants, advancing state
common law claims for breach of contract, intentional (tortious)
interference with contractual relations, and defamation. She
invokes this court’s diversity subject matter jurisdiction, see
28 U.S.C. § 1332, and seeks $15 million in damages. Defendants
move for summary judgment, asserting that there are no genuinely
disputed material facts and claiming they are entitled to
judgment as a matter of law on each of Dr. Obi’s claims. Dr.
Obi objects.
For the reasons discussed, defendants’ motions for summary
judgment are granted. Standard of Review
When ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,
844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). Summary
judgment is appropriate when the record reveals “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this
context, a factual dispute “is ‘genuine’ if the evidence of
record permits a rational factfinder to resolve it in favor of
either party, and ‘material’ if its existence or nonexistence
has the potential to change the outcome of the suit.” Rando v.
Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party opposing
summary judgment would bear the burden of proof at trial, that
party may not simply rely on the absence of evidence but,
rather, must point to definite and competent evidence showing
the existence of a genuine issue of material fact.” Perez v.
Lorraine Enters., 769 F.3d 23, 29–30 (1st Cir. 2014). In other
words, “a laundry list of possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more, is not
enough to stave off summary judgment.” Tobin v. Fed. Express
2 Corp., 775 F.3d 448, 451–52 (1st Cir. 2014). See generally
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Background
Defendant Exeter Health Resources, Inc. (“Exeter Health”)
is the parent corporation of Exeter Hospital, Inc., in Exeter,
New Hampshire. Defendant Core Physicians, LLC (“Core”) is an
organization that employs the hospitalists who work at Exeter
Hospital. And, finally, defendant Barton & Associates
(“Barton”) is an organization that provides locum tenens
physicians to various organizations around the country,
including Core. 1
In 2016, Dr. Obi signed a “Client Services Agreement” with
Barton (document no. 46-4). Approximately one year later,
Barton contracted with Core to provide Core with locum tenens
healthcare providers, on an “as needed” basis. See Group Locum
Tenens Agreement (document no. 45-1). Later that year, Barton
assigned Dr. Obi to a placement as a locum tenens physician at
Exeter Hospital, for a period of nine days, beginning on
1 In Latin, “locum tenens” means “place holder” or “to hold the place of.” A locum tenens physician is typically hired on a temporary basis, to fill in for a regular physician who is absent, or in situations where a medical practice is short- staffed.
3 December 24, 2017. See Placement Order (document no. 46-5). 2
Core did not enter into any contractual relationship with Dr.
Obi, nor did it pay her directly for her services. See
Affidavit of Debra Cresta, President of Core Physicians, LLC
(document no. 45-8) at para. 7. Rather, pursuant to its
agreement with Barton, Core was obligated to pay Barton $320 per
hour of services provided by Dr. Obi (with a slightly higher
hourly rate of compensation for December 25 and January 1).
Barton, in turn, would compensate Dr. Obi, pursuant to their
separate contractual agreement.
To facilitate Dr. Obi’s work at the hospital, Exeter
Hospital granted her temporary medical staff membership and
privileges to practice at the hospital. In exchange, Dr. Obi
signed an “Applicant’s Consent and Release” (document no. 45-3).
During Dr. Obi’s nine days at Exeter Hospital, the hospital
received a number of complaints about her from staff, patients,
and patients’ family members. In short, those complaints
centered around two general categories of concerns: Dr. Obi’s
odd personal behavior and her unprofessional clinical practices.
2 Prior to her beginning work at Exeter Hospital, Dr. Obi’s temporary assignment there was augmented to include additional days in January and February of 2018. See Placement Order (document no. 46-6). However, Exeter Hospital suspended her privileges before she had an opportunity to work on any of those days.
4 Following a preliminary investigation into those reports, Exeter
Hospital revoked Dr. Obi’s temporary privileges. And, by letter
to Dr. Obi dated February 9, 2018, the President of Exeter
Hospital Medical Staff summarized the complaints against Dr.
Obi, reaffirmed the suspension of her temporary privileges, and
informed her of the various due process rights available to her.
Dr. Obi was also told that, as required by federal law, Exeter
Hospital would have to file a report with the National
Practitioner Databank indicating that her clinical privileges
had been suspended. See Letter from Rick Hollister, MD
(document no. 45-4). See generally 45 C.F.R. § 60.12 (“Each
health care entity must report to the NPDB and provide a copy of
the report to the Board of Medical Examiners in the state in
which the health care entity is located the following actions:
(i) Any professional review action that adversely affects the
clinical privileges of a physician or dentist for a period
longer than 30 days, . . ..”) (emphasis supplied).
Dr. Hollister’s letter recounts a series of troubling
interactions that, according to a variety of sources, Dr. Obi
had with patients (e.g., praying over patients without their
consent, telling patients that dementia is caused by spirits
inhabiting a person’s body, recruiting patients to adopt her
church/religious beliefs). It also states that, following an
5 extensive review of Dr. Obi’s work, her “documentation
practices” revealed a “widespread lack of contemporaneous
[treatment] notes” that impeded proper patient care and, in one
case, may have contributed to a patient’s death.
Dr. Obi acknowledges the “lapse in [her] progress notes,”
but blames those lapses on having been over-worked by the
hospital. And, while she admits praying with various patients,
Dr. Obi generally denies the substance (but not the existence
of) the troubling reports made by staff, patients, and patients’
family members. See Affidavit of Loretta Obi, MD (document no.
47-1), at para. 6. She claims some people were coerced into
making those (allegedly false) reports, while other reports were
made by individuals with racial biases against her, personal
grudges, or an interest in concealing the “secrets” about Exeter
Hospital that she had discovered (and was, at least in part,
exposing on various social media platforms):
Revoking my license was retaliation because of the secret information I discovered through research and personal experiences, and for also publicly exposing them at Exeter Hospital and social media platforms.
The truth of this matter is that only people with something to hide, evil minds, evil intents, evil deeds would make up and use allegations especially the behavioral concerns to deny another being of her ability to survive and provide for her children because those poses [sic] no threat to anyone. Most were fabricated to distract from the real health
6 issues that the medical community at large have overlooked because they created them to keep humanity sick, subjugated and dependent. Most of the allegations are smoking mirrors to cover up the real issues, the real health risks that I was very vocal about during my time spent at Exeter Hospital. I was kicked out of Exeter hospital out of fear and to protect their interests because of the SECRETS that I knew and was exposing which must have also been caught in their internal electronic incident reporting system but never mentioned in the allegations. Why didn't Exeter hospital report to NPDB that I made these statements if they were false? Think for yourself!
Affidavit of Loretta Obi, MD, at paras. 9-10 (emphasis in
original). Dr. Obi describes the “secrets” that she uncovered
at Exeter Hospital as “crimes against humanity.” Id. at paras.
4 and 12. They are listed at length in her affidavit and they
are documented, at least to some extent, in videos Dr. Obi
posted to YouTube that apparently show various interactions she
had with patients and staff members. 3
Following the suspension of her clinical privileges, Dr.
Obi was given notice of that action and an opportunity to
3 According to Exeter, Dr. Obi is the “subject of an ongoing criminal investigation arising from her alleged video recording of patients and staff members at Exeter Hospital, without their knowledge or consent and posting the videos on the internet. In one video, the Plaintiff secretly recorded a conversation with a nurse in which they discuss a patient’s confidential health information and in another, the Plaintiff secretly recorded herself praying with a patient in the emergency department.” Defendants’ Memorandum (document no. 28-1) at 6-7. Exeter says those videos may have violated federal HIPPA regulations and/or New Hampshire wiretapping laws.
7 respond. She elected not to participate in the process. Exeter
Hospital filed a report with the National Practitioner Databank
(“NPDB”), notifying it of the decision to suspend Dr. Obi’s
temporary privileges on grounds that she posed an immediate
threat to health or safety, committed errors in prescribing or
dispensing medications, made inappropriate and unprofessional
comments to patients, and failed to maintain adequate patient
records. See NPDB Report (document no. 28-6). The NPDB, in
turn, reported Dr. Obi to the New Hampshire Board of Medicine.
The Board of Medicine then contacted Dr. Obi, but she
failed to respond to the Board’s request for a written
explanation of the conduct described in the NPDB report. She
then refused to attend the Board’s hearing in her case, writing
that she had “chosen to dismiss the Board’s service as a
representative” and indicating that the Board “has no consent to
write statutes over her.” Order Revoking License (document no.
28-7) (quoting Dr. Obi’s letter). 4 Nevertheless, a hearing was
held in her absence, at which two investigators for the Board
4 Although it is not entirely clear whether Dr. Obi views herself as a “sovereign citizen,” she does employ many of the arguments, references to the Uniform Commercial Code, and the linguistic and punctuation patterns common to members of that movement. See, e.g., Handwritten notes on Order Revoking License (document no. 28-7). See also, Complaint (document no. 2) at 11 of 63.
8 testified. Both investigators testified in a manner consistent
with the information provided by Exeter Hospital in its report
to NPDB. See Id. On October 4, 2018, the Board suspended Dr.
Obi’s license to practice medicine and write prescriptions in
New Hampshire. Id.
Meanwhile, Core contacted Barton (the company that
originally provided Dr. Obi as a locum tenens physician) and
formally cancelled Dr. Obi’s placement at Exeter Hospital. It
also notified Barton of its intention not to assign Dr. Obi to
any future placements at Exeter Hospital. See Cancellation
Letter (document no. 47-7). About four months later, Dr. Obi
initiated this litigation.
Discussion
As construed by the magistrate judge, see Report and
Recommendation (document no. 14), Dr. Obi’s complaint advances
three common law claims against Exeter Health: breach of
contract, intentional interference with contractual relations,
and defamation. 5 As to the remaining two defendants - Core and
Barton - Dr. Obi advances a single breach of contract claim.
5 As noted above, Exeter Health is the parent corporation of Exeter Hospital. It is not a provider of health care services, nor did it extend (or revoke) Dr. Obi’s medical privileges, nor did it employ her as a locum tenens physician. Dr. Obi’s claims
9 I. Barton & Associates, Inc.
Dr. Obi executed a “Client Services Agreements” with Barton
in September of 2016. See Client Services Agreement (document
no. 46-4). 6 That contract contains a mandatory choice of forum
clause:
This Agreement and all [Placement Orders] shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice- or conflict-of- law provision or rule that would cause the application of laws of any jurisdiction other than Massachusetts. Any suit, action, or proceeding arising from this Agreement shall exclusively be instituted in the courts of the United States or the Commonwealth of Massachusetts in each case located in Suffolk County, and each party irrevocably submits to the personal jurisdiction of such courts in any such suit, action, or proceeding.
Client Services Agreement at para. 13.4 (emphasis supplied).
Dr. Obi does not contest the enforceability of those provisions.
See generally Atl. Marine Constr. Co. v. U.S. Dist. Court for W.
Dist. of Texas, 571 U.S. 49, 67 (2013) (“As the party acting in
violation of the forum-selection clause, [plaintiff] must bear
appear to be against Exeter Hospital, which she has not named as a defendant. Nevertheless, Exeter Hospital is obviously aware of Dr. Obi’s claims and Exeter Health has offered a defense on its behalf. As the parties accept the actual defendant to be Exeter Hospital, the court will as well.
6 In December of 2017, that agreement was modified, at Dr. Obi’s request, to change the contracting entity from “Loretta Obi” to her new legal entity, “Obimedicalpc.” The terms of the amended contract remained the same.
10 the burden of showing that public-interest factors
overwhelmingly disfavor a transfer.”); Carter’s of New Bedford,
Inc. v. Nike, Inc., 790 F.3d 289, 292 (1st Cir. 2015) (“The
burden of proof is on the party opposing the enforcement of the
forum selection clause.”). Although Dr. Obi does make a
somewhat vague claim that Barton and/or Core “forged” her
signature to the Placement Order, see Complaint (document no. 2)
at 8 of 63 (referencing her “Placement Order” at page 16 of 63),
that assertion is wholly unsupported by the record (which
satisfactorily demonstrates that Dr. Obi reviewed and signed all
relevant documents through her account with DocuSign). And,
perhaps more importantly, Dr. Obi does not challenge the
authenticity of her signature to the overarching “Client
Services Agreement.”
In light of the foregoing, and for the reasons set forth in
Barton’s memorandum of law (document no. 46), it is plain that
the contract between Dr. Obi and Barton requires Dr. Obi to file
any litigation against Barton exclusively in the Commonwealth of
Massachusetts. Accordingly, Dr. Obi’s breach of contract claim
against Barton is dismissed, without prejudice. Because Dr.
Obi’s complaint does not allege contract damages that plausibly
meet the $75,000 amount-in-controversy requirement imposed by 28
U.S.C. § 1332(a), the court declines to transfer Dr. Obi’s
11 claims to the United States District Court for the District of
Massachusetts. See Complaint, at 20 of 63 (alleging that Barton
owes Dr. Obi $22,347.20 in unpaid wages).
II. Core Physicians, LLC
Next, Dr. Obi alleges that Core breached its contract with
her. See generally Report and Recommendation (document no. 14)
at 6. The problem with that claim is this: Dr. Obi had no
contractual relationship with Core. Core merely acted as the
intermediary between Barton (the provider of locum tenens
physicians, with whom Obi did have a contract) and Exeter
Hospital; Core did not contract directly with Dr. Obi but,
instead, facilitated Barton’s placement of Dr. Obi at Exeter
Hospital. In legal parlance, Dr. Obi lacks contractual privity
with Core. Absent contractual privity, Dr. Obi cannot pursue a
breach of contract claim against Core. See generally Surge
Res., Inc. v. The Barrow Grp., 2003 DNH 041, 2003 WL 1193012, at
*2 (D.N.H. Mar. 12, 2003); Gross v. Shep Brown’s Boat Basin,
2000 DNG 049, 2000 WL 1480373, at *1 (D.N.H. Feb. 28, 2000). 7
7 Dr. Obi does not claim that she is an intended third-party beneficiary of the various contracts between the defendants or that she has standing to sue for any alleged breach of those contracts. See generally Arlington Tr. Co. v. Estate of Wood, 123 N.H. 765, 767 (1983).
12 Moreover, even if there had been a contract between Dr. Obi
and Core, Dr. Obi has failed to point to any conduct on the part
of Core that would constitute a breach (nor, of course, has she
pointed to the specific contract provision that was breached).
Core’s decision to contact Barton and “exercise[e] its right to
cancel [Dr. Obi’s] placement for provider breach” was entirely
consistent with its agreement with Barton. See Letter dated
January 26, 2018 (document no. 45-7); see also Contract between
Barton and Core, “Group Locum Tenens Agreement,” (document no.
45-1) at Article V (“Cancellation & Termination”). Core is,
then, entitled to judgment as a matter of law on Dr. Obi’s
breach of contract claim.
III. Exeter Health Resources, Inc.
Finally, as noted above, Dr. Obi brings three common law
claims against Exeter Health (or, more accurately, Exeter
Hospital): breach of contract, tortious (intentional)
interference with contract, and defamation. None can survive
summary judgment.
First, Exeter Hospital is contractually immune from each of
Dr. Obi’s claims. See Applicant’s Consent and Release (document
no. 45-3) at 3. That release is comprehensive and provides, in
part, as follows:
13 I agree that, by applying for appointment and clinical privileges, I accept the conditions below regardless of whether or not I am granted appointment or privileges, and I agree to be legally bound by those conditions, which shall remain in effect for the duration of any term of appointment I may be granted.
Pursuant to New Hampshire RSA 507:8-c and any and all other pertinent state and federal law, I shall extend absolute immunity to, and release from any and all liability, and agree not to sue Exeter Hospital, its Medical Staff, and/or any other authorized representatives acting by and/or for the Hospital or its Medical Staff, and/or any third parties working in good faith in conjunction with them for any actions, recommendations, reports, statements communications, or disclosures involving me, which are made, taken, or received in conjunction with them relating, but not limited to, the following . . .
Applicant’s Consent and Release at 3. 8 The non-exhaustive list
of circumstances to which the release applies includes:
“proceedings for suspension or reduction of clinical privileges
or for denial or revocation of appointment, or any other
disciplinary action;” “precautionary and/or summary
suspensions;” “matters or inquiries concerning professional
qualifications, credentials, clinical competence, character,
mental or emotional stability, physical condition, ethics, or
behavior;” and “any other matter that might directly or
indirectly have an effect on my competence, on patient care, or
8 As a third party working in conjunction with Exeter Hospital (to provide locum tenens physicians), Core is likely covered by the terms of that release as well.
14 on the orderly operation of Exeter Hospital or any other
hospital or health care facility.” Id.
In her affidavit, Dr. Obi testifies that she “does not
recall ever signing any ‘Applicant’s Consent and Release’
agreement,” and half-heartedly argues that even if she did, it
should not be enforced against her because it was “not
acknowledged with a second party’s autograph on the same
document.” Affidavit of Dr. Loretta Obi (document no. 47) at 2,
para. 9. She also claims the release was the product of
“unequal bargaining power” and “ambiguous language.” Id. Her
arguments do not preclude enforcement of the terms of the
release.
To be sure, Dr. Obi also claims Exeter Hospital acted in
“bad faith,” which she says is a proper ground upon which to
hold that the release is unenforceable. Id. However, her bald
assertion of “bad faith” is unsupported by the record and,
standing alone, is insufficient to invalidate the release. See
generally Perez, 769 F.3d at 29–30; Tobin, 775 F.3d at 451–52.
Finally, even if the release did not preclude Dr. Obi from
bringing her common law claims against Exeter Hospital, the
record reveals that none of those claims has merit. Dr. Obi has
15 failed to identify which aspect of her contract with Exeter
Hospital was breached or how the hospital’s conduct amounts to a
breach of contract. As for her tortious interference with
contract claim, Dr. Obi has pointed to no evidence suggesting
that Exeter Hospital wrongfully induced Barton (or Core) to
breach its agreement with her, or that Exeter Hospital
intentionally and improperly interfered with Dr. Obi’s
relationship with those entities. See generally Tessier v.
Rockefeller, 162 N.H. 324, 337 (2011); Hughes v. N.H. Div. of
Aero., 152 N.H. 30, 40–41, (2005).
And, finally, even if Dr. Obi were not barred from pursuing
a defamation claim against Exeter Hospital, she has not pointed
to any record evidence that might permit a rational trier-of-
fact to conclude that Exeter Hospital knew the report that it
submitted to the NPDB was false. Indeed, the record before the
court establishes that Exeter Hospital had good reason to
believe the troubling reports it had received about Dr. Obi’s
odd and unprofessional conduct. Moreover, as Exeter Hospital
points out, its report to the NPDB - even if false - was, at a
minimum, “conditionally privileged.” A statement is
“conditionally privileged” if “the facts, although untrue, were
published on a lawful occasion, in good faith, for a justifiable
purpose, and with a belief, founded on reasonable grounds of its
16 truth.” Chagnon v. Union Leader Corp., 103 N.H. 426, 438 (1961)
(citation omitted). See also Pierson v. Hubbard, 147 N.H. 760,
763–64 (2002). To be actionable, a “conditionally privileged”
statement must have been made with “actual malice.” Chagnon,
103 N.H. at 438. Here, Exeter Hospital was legally required to
file the report with the NPDB, see 45 C.F.R. §§ 60.5 and 60.12,
and the record evidence, even viewed in the light most favorable
to Dr. Obi, would not support a conclusion that Exeter Hospital
made any statement in that report with actual malice.
Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ legal memoranda, Exeter Health Resources, Exeter
Hospital, and Core Physicians are entitled to judgment as a
matter of law as to all claims advanced against them.
Accordingly, their motion for summary judgment (document no. 45)
is granted.
The motion for summary judgment submitted by Barton &
Associates, Inc. (document no. 46) is granted to the extent it
seeks dismissal, without prejudice, of Dr. Obi’s breach of
contract claim.
17 The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
May 16, 2019
cc: All pro se parties and counsel of record