Maggard v. Kinney

576 S.W.3d 559
CourtMissouri Court of Appeals
DecidedJune 13, 2019
Docket2018-SC-000153-DG
StatusPublished
Cited by29 cases

This text of 576 S.W.3d 559 (Maggard v. Kinney) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maggard v. Kinney, 576 S.W.3d 559 (Mo. Ct. App. 2019).

Opinion

OPINION OF THE COURT BY JUSTICE HUGHES

Ten years ago in Breathitt County Board of Education v. Prater, 292 S.W.3d 883 (Ky. 2009), this Court recognized that the denial of a substantial claim of absolute immunity entitled the claimant to an immediate appeal. Noting that immunity entitles the possessor to be free from the burdens of litigation, not merely liability, and that such entitlement could not be fully vindicated following a final judgment, we authorized an exception to the final judgment rule for appellate jurisdiction, an exception patterned on the federal collateral order doctrine. Several years later, in Commonwealth v. Farmer, 423 S.W.3d 690 (Ky. 2014), we addressed the attempted interlocutory appeal of the denial of self-defense immunity in a criminal case. The Kentucky Constitution and the appellate jurisdiction statute, Kentucky Revised Statute (KRS) 22A.020, precluded that type of criminal interlocutory appeal but we noted that even in the absence of the constitutional and statutory constraints, the collateral order doctrine would not allow it.

Today, we encounter an interlocutory appeal from the denial of a judicial statements privilege in litigation between two physicians, and unequivocally deem the matter before us to be well beyond the parameters of appellate interlocutory jurisdiction. A privilege is not synonymous with or equivalent to immunity because it does not relieve the holder of the burdens of litigation or even, necessarily, the imposition of liability. Moreover, as we noted in Farmer, the collateral order doctrine authorizes immediate appeal of orders that conclusively determine an important issue *561separate from the merits of the action and that are effectively unreviewable on appeal from a final judgment but, even then, only in those circumstances where allowing the case to proceed would imperil a substantial public interest. Id. at 697. This case does not meet those criteria. Because neither the Court of Appeals nor this Court has appellate jurisdiction of this unauthorized interlocutory appeal, we vacate and remand to the trial court for further proceedings in this case.

FACTS AND RELEVANT PROCEDURAL BACKGROUND

Beginning in the mid-2000s, Dr. Angela K. Maggard and Dr. Bruce Kinney practiced obstetrics and gynecology in Prestonsburg, Kentucky. Both physicians performed procedures at Highlands Regional Medical Center (HRMC), but worked at separate medical practices and competed for patients. Dr. Maggard alleges that Dr. Kinney engaged in a pattern of conduct intended to damage her reputation and lure her patients to his medical practice.

Dr. Maggard claims, among other things, that Dr. Kinney enticed Kathy Harless, a former patient of Dr. Maggard's, to file a medical malpractice action against her. In 2005, after Dr. Maggard performed a hysterectomy on Harless, she complained of incontinence and Dr. Maggard referred her to a urologist. The urologist diagnosed her with a condition where an abnormal tract develops between the bladder and the vagina, allowing the involuntary discharge of urine. Harless claimed that, after Dr. Maggard heard the diagnosis, she called and admitted to accidentally cutting a hole in Harless's bladder during the surgery, but Dr. Maggard strongly denied this allegation. After Dr. Maggard's practice refused to pay Harless's medical bills, Harless filed a Federal Tort Claims Act action in the United States District Court for the Eastern District of Kentucky.1 Harless later confirmed that Dr. Kinney had told her husband she should sue Dr. Maggard for medical malpractice and that he would help them find an attorney.

Dr. Kinney served as Harless's sole expert witness at the bench trial and opined that Dr. Maggard's actions fell below the standard of care, which resulted in Harless's injury. The federal district judge eventually entered judgment in favor of the United States based on the lack of proof that Dr. Maggard caused any injury. In so ruling, the judge further specifically found that Dr. Kinney lacked objectivity and credibility as a witness.

While Harless's federal case was pending, Dr. Kinney filed a grievance against Dr. Maggard with the Kentucky Board of Medical Licensure (KBML). He accused Dr. Maggard of performing unnecessary procedures, breaking a newborn's skull during delivery, falsifying medical records, defrauding Medicaid, engaging in fraudulent billing and referral practice, and of being a pathological liar. Dr. Kinney's grievance referred to eleven patients, three of whom Dr. Maggard never even treated. Dr. Maggard also claims that Dr. Kinney encouraged at least two of her former patients to file grievances. The KBML determined that all of the grievances lacked merit and dismissed them.

In addition to the statements made before the KBML, Dr. Maggard alleges that Dr. Kinney made false and defamatory statements to hospital administrators, physicians, and staff members at HRMC

*562where both of them were on staff. Dr. Maggard supports these allegations through the testimony of Dr. Enrico Ascani, another obstetrician/gynecologist practicing at HRMC. Dr. Ascani testified that Dr. Kinney told him he would run Dr. Maggard out of business. Additionally, Dr. Ascani confirmed that during a staff meeting where Dr. Maggard was elected the Chairperson of obstetrics and gynecology, Dr. Kinney referred to her as "black-hearted and evil." These statements were allegedly also made to other physicians and administrators at HRMC.

On March 4, 2009, Dr. Maggard filed a Complaint in Floyd Circuit Court, asserting that Dr. Kinney: (1) libeled and slandered her in his federal case testimony during the Harless case; (2) libeled and slandered her in his KBML grievance; (3) made false statements to her colleagues, patients, hospital administrators, and the KBML; (4) violated KRS 311.5902 by providing false and fraudulent information to the KBML; (5) wrongfully used civil proceedings by filing false KBML grievances and recruiting others to do the same; and (6) committed abuse of process by reporting her to the KBML, and causing others to report her, for purposes other than discipline.

Dr. Kinney moved to dismiss Dr. Maggard's Complaint but the trial court denied the motion. Thereafter, Dr. Kinney filed an Answer in which he asserted the judicial statements privilege as a defense. After Dr. Kinney's Answer, nothing happened in the case for nearly two years. During 2011 through 2013, the trial court conducted several pretrial conferences and the parties engaged in a few discovery attempts, but otherwise little activity occurred. In December 2013, Dr. Maggard filed an Amended Complaint, asserting claims regarding the defamatory statements Dr. Kinney made in relation to the KBML proceedings in addition to the Harless case testimony. On January 17, 2014, Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
576 S.W.3d 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maggard-v-kinney-moctapp-2019.