Adventist Healthcare v. Behram

Adventist Healthcare, Inc. v. Steven S. Behram, No. 16, September Term, 2023. CONTRACT INTERPRETATION – OBJECTIVE THEORY OF CONTRACT INTERPRETATION Maryland adheres to the objective theory of contract interpretation. Under that approach, unless the language of the contract is ambiguous, we interpret it based on what a reasonable person in the position of the parties would have understood the language to mean rather than the subjective intent of the parties at the time of formation. We do not interpret contractual language in a vacuum.

Instead, we interpret that language in context, which includes not only the text of the entire contract but also the contract’s character, purpose, and the facts and circumstances of the parties at the time of execution. CONTRACT INTERPRETATION – GENUINE DISPUTE OF MATERIAL FACT The parties, a hospital and a physician, entered a settlement agreement that, among other things, required the hospital to submit a report to a regulatory authority using specific language negotiated by the parties. In submitting its report, the hospital was required by the regulatory authority to select codes that generated text that appeared prominently in the report. The physician alleged that although the hospital could have selected codes that were consistent with the report it had agreed to submit, it instead chose codes that contradicted and were inconsistent with the report it had agreed to submit.

In the physician’s action for breach of the settlement agreement, the Circuit Court for Montgomery County awarded summary judgment to the hospital on the ground that the settlement agreement did not restrict the hospital’s selection of codes in submitting its report. The Supreme Court, agreeing with the Appellate Court, held that, considering the text of the settlement agreement as well as its character and purpose and the facts and circumstances of the parties at the time of execution, a reasonable person in the position of the parties would have understood the hospital’s obligation to report to the regulatory authority to preclude it from including additional language that contradicted and was materially inconsistent with the agreed language. Whether the code-generated language added by the hospital breached its obligation under the settlement agreement was a jury question. CONTRACT INTERPRETATION – RELEASE CLAUSES A physician’s agreement to release all claims related to a suspension of his clinical privileges released his claim that the hospital failed to provide him a timely hearing to contest that suspension.

Circuit Court for Montgomery County Case No. 483870V IN THE SUPREME COURT Argued: April 9, 2024 OF MARYLAND No. 16 September Term, 2023 _____________________________________ ADVENTIST HEALTHCARE, INC. v. STEVEN S. BEHRAM ______________________________________ Fader, C.J., Watts, *Hotten, Booth, Biran, Gould, Eaves, JJ. ______________________________________ Opinion by Fader, C.J. Gould, J., joins in judgment only. ______________________________________ Filed: August 27, 2024 Pursuant to the Maryland Uniform Electronic Legal *Hotten, J., now a Senior Justice, participated in Materials Act (§§ 10-1601 et seq. of the State the hearing and conference of this case while an Government Article) this document is authentic. active member of this Court. After being 2024.08.27 recalled pursuant to the Maryland Constitution, 10:56:20 -04'00' Article IV, § 3A, she also participated in the Gregory Hilton, Clerk decision and adoption of this opinion. In this appeal, we explore when it is appropriate to grant summary judgment in a breach of contract action. Adventist Healthcare, Inc., doing business as Shady Grove Medical Center (the “Hospital”), and Dr. Steven S. Behram entered into a Confidential Agreement, Release and Waiver (the “Settlement Agreement” or “Agreement”) to resolve a dispute about the Hospital’s suspension of Dr. Behram’s clinical privileges. 1 The parties agreed, among other things, that the Hospital would reinstate Dr. Behram’s clinical privileges in full, and Dr. Behram would then promptly resign those privileges.

The parties also agreed to specific language the Hospital would use in subsequently reporting Dr. Behram’s suspension and reinstatement to regulatory authorities. Dr. Behram contends that the Hospital breached the Agreement when it filed reports that, in addition to the agreed language, included language that contradicted and was inconsistent with the agreed language. The additional language was generated by alphanumeric codes the Hospital selected when it filed the reports. The Circuit Court for Montgomery County granted summary judgment in favor of the Hospital on the ground that the Settlement Agreement did not obligate the Hospital to use particular codes when making its report.

The Appellate Court of Maryland disagreed, Behram v. Adventist Health Care, Inc., No. 375, Sept. Term, 2022, 2023 WL 4011686 , at ¹⁶, ²⁴ (Md. App. Ct. June 15, 2023), as do we. We hold that a reasonable person in the 1 Before us, the Hospital is the petitioner and cross-respondent, and Dr. Behram is the respondent and cross-petitioner. In the circuit court, Dr. Behram was the plaintiff and the Hospital the defendant. 2 position of the parties would have understood that the Hospital’s obligation to report to regulatory authorities using specific, agreed upon language precluded the Hospital from also reporting contradictory and materially inconsistent language in the same report, regardless of how that language was generated. On this record, whether the additional language added by the Hospital materially breached that obligation is a jury question.

Dr. Behram also contends that the Hospital breached its medical staff bylaws when it failed to provide him with a timely hearing after it suspended him. The circuit court awarded the Hospital summary judgment on that claim, concluding that Dr. Behram had released that claim in the Settlement Agreement. The Appellate Court agreed with the circuit court, id. at ¹⁶, ²⁴, as do we. Accordingly, we affirm in full the judgment of the Appellate Court.

BACKGROUND A. Factual Background The background to this contractual dispute lies in a lengthier dispute, which the parties intended the Settlement Agreement to resolve. Dr. Behram is an obstetrician who previously had clinical privileges to practice at the Hospital. He also had professional relationships with other Hospital-affiliated doctors, including some in leadership, that were not harmonious. In 2019, the Hospital’s Medical Executive Committee twice voted to suspend Dr. Behram.

The Hospital contends that the suspensions arose from concerns about Dr. Behram’s patient care. Dr. Behram alleges that the Hospital never had real concerns 3 about his patient care. Instead, he claims that Hospital and medical staff leadership suspended him for anticompetitive reasons and out of personal animus. 2 The resolution of that dispute is irrelevant to the issues now before us because the parties subsequently entered into the Settlement Agreement, in which each party agreed to undertake certain actions and to release certain claims. Our review of the factual background is limited to those facts necessary to provide context for the parties’ undertakings in the Settlement Agreement. 1.

Suspension, Reinstatement, and Fair Hearing Disputes On both occasions that the Hospital’s Medical Executive Committee voted to suspend Dr. Behram, the letters notifying Dr. Behram cited “significant concerns about the quality of [his] care of patients at [the] Hospital, which [were] deemed to represent an immediate risk of harm or an immediate or imminent risk of danger to patients.” In each letter, the Hospital identified a single case in which Dr. Behram was alleged to have provided deficient patient care. Dr. Behram disputes the allegations in both letters as well as the Hospital’s good faith in making them. 3 2 Dr. Behram’s complaint details his version of the history of his disputes with specific individuals and his claims concerning the efforts of those individuals to undermine him and his practice and to “weaponize” the Hospital’s peer review process against him. The particulars of those individual disputes are irrelevant to our analysis, and so we will not address them in any detail. 3 With respect to the first suspension, the Hospital alleged that Dr. Behram had failed to address a patient’s hypotension and subsequent sepsis, requiring the patient to undergo an emergency hysterectomy. Dr. Behram claims that a simple review of patient records would have revealed that the patient’s infection occurred after Dr. Behram’s role in the 4 The first suspension occurred in July 2019.

Less than 30 days later, the Medical Executive Committee reinstated Dr. Behram’s privileges. The second suspension occurred in September 2019. That time, the Medical Executive Committee voted to continue the second suspension, which resulted in it extending longer than 30 days. 4 The duration of the suspensions is significant because federal law requires a health care entity to report to the National Practitioner Data Bank (“Data Bank”) 5 whenever the patient’s care had ended. With respect to the second suspension, the Hospital alleged that Dr. Behram had delayed an emergency caesarian section by attempting an alternative medical procedure, resulting in a poor fetal outcome.

Dr. Behram contends that he attempted the alternative procedure only because the Hospital did not have an available operating room or anesthesiologist to support the caesarian section. 4 At the time the Medical Executive Committee voted to extend the second suspension beyond 30 days, it also referred Dr. Behram to the Maryland Physician Health Program, which is an organization that helps health care professionals “address issues that may potentially impact their ability to practice medicine,” including alcohol and substance abuse, mental or emotional health, physical and cognitive impairment, and behavioral issues. Maryland Physician Health Program, Center for a Healthy Maryland, https://healthymaryland.org/maryland-physician-health-program/ (last accessed June 11, 2024), archived at https://perma.cc/SD6U-Z9BY. After examining Dr. Behram, the program concluded there was “no evidence of any potential underlying conditions that could impact [Dr. Behram’s] ability to practice medicine in a safe, competent, and professional manner.” Dr. Behram alleges that the Hospital referred him to the Maryland Physician Health Program as part of its effort to “create a false and misleading narrative to further defame him.” 5 The Data Bank is a database operated by the United States Department of Health and Human Services. About Us, National Practitioner Data Bank, https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp (last accessed June 11, 2024), archived at https://perma.cc/8T4J-9HMX.

It contains information on malpractice and other adverse actions against healthcare providers and is visible to eligible entities including, but not limited to, state licensing boards and hospitals. Id.; NPDB Reporting Requirements and Query Access, National Practitioner Data Bank, https://www.npdb.hrsa.gov/resources/tables/reportingQueryAccess.jsp (last accessed June 11, 2024), archived at https://perma.cc/L33S-TG6U. 5 entity takes a “professional review action that adversely affects the clinical privileges of a physician” that lasts “longer than 30 days.” 42 U.S.C. §§ 11133 , 11134; 45 C.F.R. § 60.12 (a)(1)(i). Because the first suspension was shorter than 30 days, the Hospital was not required to report it to the Data Bank. Although under a legal obligation to report the second suspension once it was in effect for more than 30 days, 42 U.S.C. § 11133 (a)(1)(A); 45 C.F.R. § 60.12 (a)(1)(i), the Hospital failed to do so, see 45 C.F.R. § 60.5 (requiring reporting “within 30 days following the action to be reported”).

The record contains no explanation for that failure, which plays prominently in the parties’ dispute about the Hospital’s eventual report nearly a year later. Under the Hospital’s Medical Staff Bylaws (the “bylaws”), a physician whose medical staff privileges have been “restricted[] or otherwise adversely affected” so as to trigger the requirement to report to the Data Bank is entitled to a “fair hearing” before a neutral panel to challenge that action. On November 7, 2019, Dr. Behram made a timely request for a fair hearing to contest his second suspension. The bylaws required the Hospital to hold the fair hearing within 60 days after it was requested, or, here, by January 6, 2020.

However, the Hospital failed to schedule a fair hearing until August 2020, when it scheduled the hearing for the following month. The record does not contain any explanation for that delay. 6 6 Although the bylaws permit the President of the Medical Staff to postpone a fair hearing for good cause, no postponement was requested or provided in this case. In March 2020, in response to a follow-up request by Dr. Behram, the Hospital contended that it 6 2. The Settlement Agreement Before the fair hearing was scheduled to occur, the parties agreed to the terms of the Settlement Agreement.

The Agreement begins with a set of recitals identifying the parties’ agreement to resolve their dispute on certain terms without providing Dr. Behram with the fair hearing to which he was entitled: WHEREAS, the Physician’s privileges were summarily suspended on September 26, 2019; and WHEREAS, the Physician is entitled to a fair hearing under the Medical Staff Bylaws; and WHEREAS, the Medical Staff’s Executive Committee has agreed to resolve the matter by voting to reinstate the Physician before the Physician exercised his rights to a fair hearing under the Medical Staff Bylaws; and WHEREAS, the Physician has determined to continue his medical practice elsewhere and wishes to resign his clinical privileges and Medical Staff membership at the Hospital. Following the recitals, Section 1 identifies the effective date of the Agreement as the date of “full execution by the Parties.” Section 2 then identifies the following undertakings relevant to this dispute: 2. Undertakings by the Parties. In consideration of the release and waiver set forth in Section 3 herein and the undertakings contained in this Agreement, the Parties agree to the following: a.

Reinstatement of Privileges. Upon execution of this Agreement by both parties, the Medical Executive Committee will could not schedule the fair hearing at that time due to restrictions arising from the COVID- 19 pandemic. The Hospital did not provide a reason for its failure to schedule the fair hearing between January 6, 2020 and the onset of the COVID-19 pandemic in March 2020. 7 convene to reinstate Physician’s clinical privileges at the Hospital. . . . b. Resignation Letter.

Immediately after the Physician’s clinical privileges are reinstated by action of the Medical Executive Committee, the Physician will be deemed to have submitted the letter, attached to this Agreement as Exhibit 1, to resign from his Medical Staff membership and clinical privileges at the Hospital. *** e. NPDB Entry. The Hospital will submit the report attached hereto as Exhibit 3, to the National Practitioner Data Bank by no later than 15 days after the Effective Date of this Agreement. The Hospital will provide this same language to the Maryland Board of Physicians at the same time.[7] The Settlement Agreement includes an integration clause, which states that the “Agreement constitutes the full and complete understanding between the Parties, and except as provided herein, revokes, cancels and supersedes any prior understanding or agreement, whether oral or in writing, between them.” The parties also agreed that any subsequent agreements had to be “in writing and signed by each of the Parties” and that Dr. Behram “is not relying on any representation by or on behalf of the Hospital, except as expressly set forth in this Agreement.” The Agreement also contains a mutual disclaimer of any admission of liability and releases by both parties.

Dr. Behram released the Hospital broadly from all claims “that relate[] to the Hospital’s July 17, 2019 suspension and subsequent reinstatement of the Physician’s privileges on August 13, 2019, and, the 7 Sections 2.c. and 2.d. address, respectively, the Hospital’s agreements to provide certain language in letters of reference for Dr. Behram and to direct telephone calls seeking references to a particular individual at the Hospital. 8 Hospital’s suspension of the Physician’s privileges on September 26, 2019.” In turn, the Hospital released Dr. Behram from all claims that relate to those same events “and any disclosed or undisclosed allegations relating to patient care . . . .” The Settlement Agreement includes two exhibits that are of particular relevance to the issues before us. First, Exhibit 1, referred to in Section 2.b. of the Settlement Agreement (quoted above), contains the following text: EXHIBIT 1 [ON STEVE BEHRAM’S LETTERHEAD] [DATE—ONE DAY AFTER REINSTATEMENT VOTE BY MEC] 8 Shelia Myers Director, Medical Staff Services Shady Grove Medical Center 9901 Medical Center Drive Rockville, MD 20850 Dear Ms. Myers: By this letter, I submit my resignation from the Hospital’s Medical Staff, including both my membership on the Medical Staff and my clinical privileges at the Hospital, effective immediately. Very truly yours, Steve Behram, M.D. Second, Exhibit 3, referred to in Section 2.e. of the Settlement Agreement (quoted above), contains the following text: EXHIBIT 3 [REPORT TO NPDB AND MBP] 9 8 The “MEC” is the Medical Executive Committee. 9 The “NPDB” is the Data Bank and the “MBP” is the Maryland Board of Physicians. 9 Dr. Steve Behram’s clinical privileges were summarily suspended on September 26, 2019 for concerns regarding the quality of his patient care. The Medical Executive Committee voted on September 14, 2020 to approve his reappointment and reinstate his clinical privileges as full and unrestricted privileges.

Thereafter, Dr. Behram voluntarily resigned his clinical privileges and medical staff membership at the Hospital. 3. Pre-Execution Actions Sections 1 and 2 of the Settlement Agreement contemplate the following order of undertakings: (1) the parties would execute the Agreement; (2) the Medical Executive Committee would “convene to reinstate” Dr. Behram’s clinical privileges; (3) Dr. Behram would resign his reinstated clinical privileges; and (4) the Hospital would report to the Data Bank “by no later than 15 days after the Effective Date of this Agreement.” 10 For reasons that are not disclosed in the record, undertakings (2) through (4) all occurred before undertaking (1). According to the signatures on the Settlement Agreement, Dr. Behram executed it on September 16, 2020 and the Hospital executed it on September 21, 2020, making the latter the Agreement’s effective date. The Medical Executive Committee, however, voted to reinstate Dr. Behram’s privileges a full week earlier, on September 14, 2020.

One day later, Dr. Behram, apparently following the requirements of the agreed-to- 10 Section 2.e. of the Agreement provides only a “no-later-than” date for reporting to the Data Bank, with no “not-before” date. But the content of Exhibit 3 speaks in the past tense about both the Medical Executive Committee’s vote and Dr. Behram’s resignation, demonstrating an intent that the report post-date both of those events. 10 but-not-yet-executed Settlement Agreement, submitted his letter of resignation. 11 The Hospital then submitted its first report to the Data Bank on September 17, 2020. 4. Post-Settlement Reports to the Data Bank Under 42 U.S.C. § 11133 , health care entities, including the Hospital, are required to report to the Data Bank when the entity “takes a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days[.]” 42 U.S.C. § 11133 (a)(1)(A); 45 C.F.R. § 60.12 (a)(1)(i). Health care entities are also required to report when they accept a surrender of clinical privileges by a physician who is under investigation or in return for not conducting an investigation. 42 U.S.C. § 11133 (a)(1)(B).

The health care entity is required to report the name of the physician or practitioner, a description of the acts or omissions or other reasons for the action, or, if known, for the surrender, and other information surrounding the circumstances of the action or surrender 11 The provisions in the body of the Settlement Agreement contain multiple apparent inconsistencies with the exhibits to the Agreement, especially with respect to the timing of completing the parties’ respective undertakings. For example, Section 2.a. provides that the Medical Executive Committee would vote to reinstate Dr. Behram’s privileges only “upon execution of this Agreement by both parties,” which did not occur until September 21, 2020. Exhibit 3, however, requires the Hospital to report that the Medical Executive Committee voted to reinstate his privileges on September 14, 2020, a full week earlier. Similarly, Section 2.b. of the Agreement and Exhibit 1 are inconsistent in their treatment of both the timing and mechanism for Dr. Behram’s resignation.

Section 2.b. provides that the letter attached as Exhibit 1 “will be deemed to have [been] submitted,” without any action by Dr. Behram, “[i]mmediately after the Physician’s clinical privileges are reinstated[.]” Exhibit 1 itself, however, contemplates that the text of the letter would be placed on Dr. Behram’s letterhead and submitted “ONE DAY AFTER REINSTATEMENT VOTE BY [the Medical Executive Committee].” In submitting his resignation letter on September 15, 2020, Dr. Behram appears to have been following the requirements of Exhibit 1. 11 as appropriate. Id. § 11133(a)(3). Reports filed with the Data Bank are visible to eligible entities including, but not limited to, state licensing boards and hospitals. About Us, National Practitioner Data Bank, supra note 4.

A health care entity that fails to comply with the reporting requirements risks losing the protection of 42 U.S.C. § 11111 (a)(1), which limits damages available for professional review actions. 42 U.S.C. § 11133 (c)(1). As noted, for reasons not disclosed in the record, the Hospital failed to report Dr. Behram’s second suspension when it was required to do so in the Fall of 2019. Instead, the Hospital did so on September 17, 2020, four days before the effective date of the Agreement, in the same report in which it reported Dr. Behram’s surrender of his clinical privileges. The way in which the Hospital reported Dr. Behram’s suspension is critical to our resolution of this appeal, so we will review it in some detail.

In the Settlement Agreement, the parties agreed on precise language to be reported to the Data Bank: Dr. Steve Behram’s clinical privileges were summarily suspended on September 26, 2019 for concerns regarding the quality of his patient care. The Medical Executive Committee voted on September 14, 2020 to approve his reappointment and reinstate his clinical privileges as full and unrestricted privileges. Thereafter, Dr. Behram voluntarily resigned his clinical privileges and medical staff membership at the Hospital. (the “Agreed Report Language”).

The Hospital ended up submitting four different reports to the Data Bank, three of which are appended in full at the end of this opinion. Each report is between two and two-and-a-half pages long, most of which is populated with identifying information about Dr. Behram (i.e., name, gender, date of birth, address, provider 12 identifier, educational information, specialty, etc.) and fields to identify information such as the status of the report and whether it was contested. Information about the action being reported is contained in two areas of the report. First, near the top of the first page, there is a two-column section identifying the action being reported and the basis for the initial action.

The information contained in those columns, which appears in all capital letters and in a larger font than all following sections, is generated by codes selected and input by the reporting health care entity. Although generated by the selection of codes, what appears in the reports is text. As an example, the top half of the first page of the Hospital’s first report concerning Dr. Behram is: 13 Second, Section C of the reports, labeled “Information Reported,” contains several fields to identify the type of action taken, the basis for the action, classification codes applying to the action, the dates on which the action was taken and became effective, the length of the action, and a field for inputting a narrative description. The language identifying the basis for the action is identical to the code-generated text near the top of the first page, including being written in all capital letters (though in a font more consistent with other text on the page), with the addition of parentheticals following each statement that identify the codes used to generate the language.

As an example, the entirety of Section C as contained on page two of the Hospital’s first report concerning Dr. Behram is: i. The First Report As reflected in the images above, in submitting its first report, the Hospital submitted more than the Agreed Report Language in two ways. First, the codes the Hospital selected from the menu provided by the Data Bank populated the report with the 14 following additional language, both at the top of the first page of the report and again at the beginning of Section C: SUMMARY OR EMERGENCY SUSPENSION OF CLINICAL PRIVILEGES VOLUNTARY SURRENDER OF CLINICAL PRIVILEGE(S), WHILE UNDER, OR TO AVOID, INVESTIGATION RELATING TO PROFESSIONAL COMPETENCE OR CONDUCT IMMEDIATE THREAT TO HEALTH OR SAFETY SUBSTANDARD OR INADEQUATE CARE The second and third code-generated statements listed above are at the core of the parties’ present dispute. We will refer to them respectively as the “Voluntary Surrender Code- Generated Statement” and the “Immediate Threat Code-Generated Statement.” Second, in the narrative field in Section C, the Hospital added the following additional sentence that was not contained on Exhibit 3: “The Professional Affairs Sub- Committee of the Board approved the reinstatement and resignation on September 30, 2020 with a retroactive date of September 16, 2020.” ii.

The Second Report After the Hospital submitted the first report, Dr. Behram asserted that the Hospital had breached the Settlement Agreement by adding the Voluntary Surrender Code- Generated Statement and the extra sentence in the narrative portion of Section C. 12 In partial response to Dr. Behram’s complaint, nearly a month after it had submitted the first 12 Dr. Behram did not initially complain about the Immediate Threat Code- Generated Statement. 15 report, the Hospital submitted a second report that omitted the extra sentence from the narrative but maintained all of the original code-generated statements. iii. The Third and Fourth Reports Dr. Behram continued to assert that the Voluntary Surrender Code-Generated Statement was knowingly false and defamatory, and that its inclusion violated the Settlement Agreement. In email correspondence between counsel, the Hospital at first insisted that it did not have any choice but to use the codes it had selected because alternate codes suggested by Dr. Behram were not available. Dr. Behram’s counsel responded that the alternate codes were not available only because the Hospital had chosen to combine what should have been reported as two separate events—the suspension and reinstatement of privileges—into a single report, to hide the fact that it had failed to timely report the suspension a year earlier.

Dr. Behram’s counsel stated that “[i]n order to comply with the settlement agreement, there need[s] to be two reports – [an initial Adverse Action Report] reflecting the suspension, and a subsequent [Revision to Action report] reflecting the reinstatement of his privileges.” In response to Dr. Behram’s complaints, the Hospital filed its third and fourth reports on consecutive days in November 2020. The third report, which is identified as reporting on an “Initial Action,” identifies the action taken as a “SUSPENSION OF CLINICAL PRIVILEGES” on September 26, 2019, and the basis for the action as “SUBSTANDARD OR INADEQUATE CARE.” Those are the only two code-generated 16 statements in the third report, which includes the Agreed Report Language (and only that language) in the narrative field. The fourth report, which is identified as reporting on a “Subsequent Action” to the suspension reported the day before, identifies the action taken as “CLINICAL PRIVILEGES RESTORED OR REINSTATED, COMPLETE,” taken on September 14, 2020, and continues to identify the basis for the initial action as “SUBSTANDARD OR INADEQUATE CARE.” Those are the only two code-generated statements in the fourth report, which again includes only the Agreed Report Language in the narrative field. The only mention of Dr. Behram’s resignation of his privileges in both the third and fourth reports is in the Agreed Report Language.

Neither of those reports contains any reference to an immediate threat to health or safety or a voluntary surrender of privileges to avoid investigation. Dr. Behram alleges that at least four entities with whom he had or would want to have business relationships obtained, or were provided with, the Hospital’s knowingly false reporting in the first and second reports during the approximately two months they were available. B. Procedural Background The operative complaint, Dr. Behram’s third amended complaint, contains four counts, two of which are relevant to this appeal. 13 In Count One, Dr. Behram contends that 13 Count Two of Dr. Behram’s initial complaint was for injurious falsehood. Dr. Behram subsequently abandoned that claim but did not renumber the other counts in 17 the Hospital breached the Settlement Agreement by filing the first and second reports.

Specifically, Dr. Behram contends that the Hospital’s inclusion of the Voluntary Surrender and Immediate Threat Code-Generated Statements in the first and second reports breached the Hospital’s obligations concerning reporting to the Data Bank. In Count Four, Dr. Behram alleges that the Hospital breached its bylaws by failing to provide him with a timely fair hearing. The Hospital moved to dismiss or, in the alternative, for summary judgment. As relevant here, the motions court granted summary judgment in favor of the Hospital on Count One on the ground “that there’s no contractual obligation on the part of [the Hospital] to utilize any particular code for reporting the incident.” As a result, the court reasoned, the Hospital’s selection of codes could not have violated any obligation it owed under the Settlement Agreement.

With respect to Count Four, the court granted the Hospital’s motion to dismiss—and, in the alternative, its motion for summary judgment— on the ground that Dr. Behram had released that claim in the Settlement Agreement. The Appellate Court affirmed in part and vacated in part. Behram, 2023 WL 4011686 , at ¹⁶, 25. In a well-reasoned decision, the Appellate Court held that the motions court erred in granting summary judgment on Count One.

Id. at ¹⁶-20. The Appellate the third amended complaint. Count Three of the third amended complaint is for defamation. The Appellate Court vacated the circuit court’s award of judgment in favor of the Hospital on that count, Behram v. Adventist Health Care, Inc., No. 375, Sept. Term, 2022, 2023 WL 4011686 , at ²², ²⁴ (Md. App. Ct. June 15, 2023), and the Hospital has not contested that ruling in this Court. 18 Court concluded that when viewing the text, character,