DeLeon v. Slear

ELDRIDGE, Judge. In this case we shall hold that the doctrine of res judicata generally applies to bar a plaintiff from suing employees for defamation occurring within the scope of employment, when that plaintiff has already unsuccessfully sued their employer for defamation, and when the alleged defamatory statements in both cases were part of the same transaction or transactions. I. Dr. Jose deLeon is a surgeon who was employed by St. Joseph’s Hospital in Baltimore, Maryland. Dr. deLeon came to the hospital in July 1980 as a third year resident after failing to be reappointed to residency programs at two other hospitals.

Between January 1983 and June 1983, during Dr. deLeon’s period of residency, Elaine Slear, C.R.N.P., relayed complaints about Dr. deLeon’s work to Dr. William L. Macon, IV, Chief of Surgery at the hospital. Nurse Slear was the supervising nurse practitioner at the hospital, and it was her duty to act as the liaison between the nurse ⁵⁷² practitioners and Dr. Macon. Nurse Slear told Dr. Macon that other hospital physicians had asked that Dr. deLeon not be called to see their patients, that Dr. deLeon had failed to respond to an emergency call, and that Dr. deLeon was late for his scheduled surgeries causing patients to be anesthetized for unnecessarily long times. 1 Beginning July 1, 1983, the hospital hired Dr. deLeon as a “house surgeon” on a contractual basis. As a house surgeon, he was permitted to see only hospital patients under the supervision of other physicians.

In January 1984, Dr. deLeon applied for medical staff privileges which would allow him to admit his own patients and practice independently at the hospital. At the same time, he signed a release which read in pertinent part as follows: “I release Saint Joseph Hospital, Inc., its agents, servants, employees and staff members from liability for all acts performed in connection with evaluating my application and my credentials, qualifications and practices, and I release from liability any and all individuals and organizations who provide information to Saint Joseph Hospital, Inc. concerning my professional competence, medical practice patterns, ethics, character, and other qualifications for staff appointment and clinical privileges. I consent to the release of such information, including otherwise privileged or confidential information to Saint Joseph Hospital, Inc.” Meanwhile, Dr. Macon continued to receive complaints about Dr. deLeon’s work. On December 27, 1983, Dr. Macon telephoned Dr. deLeon and informed him that there had been a complaint by a nurse practitioner that he had refused to respond to a call to see a patient.

Dr. Macon wrote a memorandum about the call. In the memorandum, Dr. Macon also noted a complaint that the nurse practitioners had tried, for forty-five minutes, to find Dr. deLeon to ⁵⁷³ see a patient, and that when they finally found him, he was addressing Christmas cards. On March 27, 1984, Dr. Macon wrote a letter to Dr. deLeon confirming a telephone call in which Dr. Macon had informed Dr. deLeon of other complaints regarding his unavailability. In the letter, Dr. Macon recounted an incident in which Dr. deLeon allegedly was called to come to the hospital when he was “on call” and did not come, and an incident in which Dr. deLeon was unavailable to the members of the operating room staff so that they were unable to schedule Dr. deLeon’s cases in advance.

On April 3, 1984, Dr. Macon wrote another letter to Dr. deLeon, discussing more complaints about his unavailability. Notwithstanding these complaints, in July 1984, the hospital rehired Dr. deLeon as a house surgeon for another one-year term, while it investigated his credentials as part of his application for medical staff privileges. In the course of the investigation, the hospital asked physicians familiar with Dr. deLeon’s work to comment on his abilities. Dr. Macon, as head of surgery, was also asked to comment.

Dr. Macon submitted a letter in which he referred to the complaints he had received and reviewed Dr. deLeon’s credentials. He concluded that Dr. deLeon’s credentials were unsatisfactory and recommended that the application for privileges be denied. On July 16, 1984, the Credentials Committee met, considered Dr. deLeon’s application, and recommended that the application be denied. This recommendation was forwarded to the hospital’s Medical Executive Committee, then to the Board of Trustees’ Medical Staff Privileging Committee, and then to the full Board of Trustees.

Each of these bodies independently reviewed Dr. deLeon’s credentials, concluded that they were unsatisfactory, and each in turn voted to deny Dr. deLeon’s application. Dr. deLeon was officially informed of the decision to deny his application for privileges on October 17, 1984. Dr. deLeon appealed the Board’s decision through the hospital’s review process. ⁵⁷⁴ Dr. deLeon remained at the hospital as a house surgeon pending his appeal. Complaints about his work continued.

On May 3, 1985, Head Nurse Randy Broussard, R.N., wrote a memorandum to Dr. Macon, describing an incident in which an ophthalmology patient “climbed out of his bed, fell and struck his head near the R Orbit. The patient was also complaining of chest pain.” According to the memorandum, a nurse called Dr. deLeon to see the patient, but Dr. deLeon refused. The memorandum stated that Dr. deLeon claimed that he, as a house surgeon, did not see ophthalmology patients. It was, however, hospital policy that house surgeons are responsible for the coverage of ophthalmology patients.

Nurse Broussard’s memorandum pointed out that the patient died within a few days after this incident. Dr. Macon wrote a letter to Dr. deLeon informing him of this complaint. An Ad Hoc Committee of the Board of Trustees was formed to hear Dr. deLeon’s appeal. It held a hearing on August 27, 1985, but was unable to reach a decision.

A second Ad Hoc Committee was formed, which held its hearings on December 16 and 19, 1985. On February 12, 1986, the Second Ad Hoc Committee issued a report recommending that Dr. deLeon’s application be denied. Dr. deLeon then submitted a supplemental written argument to the full board. The board again voted to deny Dr. deLeon’s application on May 22, 1985.

That same day Dr. deLeon and his wife, who are citizens of the Philippines, filed a diversity action in the United States District Court for the District of Maryland against the hospital and Dr. Macon. 2 Dr. deLeon sought compensatory and punitive damages based on, inter alia, alleged defamation. Nurses Slear and Broussard were not named as defendants in this action. In count one of the amended federal complaint, Dr. deLeon set forth his basic factual allegations which were, inter alia, that the hospital’s “os ⁵⁷⁵ tensible bases for [the] denial of privileges were that Dr. deLeon did not have satisfactory knowledge, judgment and clinical skills for the independent practice of surgery and had been incompetent during the course of his residency training and house staff appointment.” It was alleged that the information offered in support of these conclusions was “supplied and procured by Dr. Macon and was false, unsubstantiated and distorted.” Count two of the federal complaint, charging defamation by the hospital, referred to the hospital’s making “many statements, written and oral, to the effect that Plaintiff did not have satisfactory knowledge, judgment and clinical skills for the independent practice of surgery and had been incompetent during the course of his residency training and house staff appointment and did stigmatize Plaintiff with the termination of his house staff officer contract, when Defendant St. Joseph knew the falsity thereof, as well as the falsity of the underlying medical and other information upon which such opinions and publications were based____” Count four of the federal complaint, asserting defamation by Dr. Macon, alleged in part that the “specific information imparted by Defendant Dr. Macon, to the effect that Plaintiff ... had been incompetent during the course of his residency training and house staff appointment, was knowingly false or made in reckless disregard of the truth thereof____” Dr. Macon, first in his answer to interrogatories filed on December 5, 1986, and then in a deposition in the federal action, identified Nurse Slear as the probable source of the majority of the complaints about Dr. deLeon. Dr. deLeon claims, however, that he did not learn the source of the complaints until July 1987, when he deposed Nurse Slear in the federal litigation.

Dr. deLeon also took the deposition of Nurse Broussard in connection with the federal suit. The United States District Court granted the defendants’ Motion for Summary Judgment on all counts, holding in an ⁵⁷⁶ unreported opinion that there were several alternate grounds which required judgment for the defendants. Chief Judge Harvey, for the United States District Court, held that the release barred all of the claims against both the hospital and its employee Dr. Macon, that the defamation claims against the hospital and Dr. Macon were barred because “none of the statements relied upon have been published to a legally distinct third party,” that Dr. Macon’s statements were privileged under Maryland law and there was no showing of actual malice to overcome the privilege, and that none of the statements were defamatory. The judgment of the United States District Court was affirmed by the United States Court of Appeals for the Fourth Circuit, DeLeon v. St. Joseph Hosp., Inc., 871 F.2d 1229 (4th Cir.), cert. denied, 493 U.S. 825 , 110 S.Ct. 87 , 107 L.Ed.2d 52 (1989).

In an opinion for the court by Judge Murnaghan, the Fourth Circuit agreed with the district court that “the release precluded recovery on every claim deLeon has alleged” ( 871 F.2d at 1236 ), that Dr. Macon’s statements were conditionally privileged both under Maryland statutes and under Maryland common law and that there was no showing of actual malice to overcome the privilege (id. at 1237-1238), and that “none of the statements were defamatory” (id. at 1238). The United States Court of Appeals also agreed with the district court that there had been no publication by the Hospital, and the Court of Appeals held that there had been no “actionable publication” by Dr. Macon (id. at 1236-1237). While the appeal to the Fourth Circuit was pending, Dr. deLeon and his wife, on July 12, 1988, brought the present defamation action in the Circuit Court for Baltimore City, against Nurses Slear and Broussard. Shortly thereafter, they filed an amended complaint containing ten counts.

The first eight counts of the complaint set forth the particular defamatory acts which allegedly caused Dr. deLeon to be denied admitting privileges at the hospital, to lose his career as a surgeon, to suffer loss of income and loss of reputation, and to “endure stigma, humiliation, mental anguish and embarrassment.” The first seven counts related ⁵⁷⁷ to alleged defamatory statements by Nurse Slear, and the eighth count related to alleged defamation by Nurse Broussard. The ninth and tenth counts were derivative claims in which Dr. deLeon and his wife asserted damage to their marital relationship. More specifically, count one alleged that Nurse Slear told Dr. Macon that Dr. deLeon had “failed to respond to a patient in the hospital and that on December 17,1983, nurse practitioners in the hospital had tried to find the Plaintiff for 45 minutes who was later found addressing Christmas cards.” Count two asserted that Nurse Slear told Dr. Macon and others that the “Plaintiff had refused to respond to an evening call to come to the hospital operating room.” Count three stated that she told Dr. Macon that Dr. deLeon “could not be reached while on call to cover the hospital for a period of several hours and particularly at 9:00 p.m., 11:15 p.m., and 12:00 a.m. and that a private attending physician finally had to be called to the hospital to evaluate the patient, who complained of chest pains.” Count four alleged that Nurse Slear told Dr. Macon that Dr. deLeon “could not be reached by the night surgical nurse practitioner on several occasions.” The allegedly defamatory statements contained in the first four counts were the same as the complaints reviewed by Dr. Macon in his memoranda, telephone calls, and letters to Dr. deLeon in December 1983 and 1984. Count five charged that Nurse Slear told Dr. Macon that “various physicians had given orders that the Plaintiff was not to be called to see their patients.” Count six asserted that she told Dr. Macon that “she attempted to reach the Plaintiff for over an hour to institute life-saving measures and when she could not reach the Plaintiff she stated to Dr. Tomhe that the Plaintiff failed to respond and that Dr. Tomhe should come to the hospital to institute emergency care and life-saving measures.” In count seven, Dr. deLeon claimed that Nurse Slear told Dr. Macon that Dr. deLeon “would fail to appear to perform surgeries as he was scheduled to do and thereby caused patients to be anesthetized for over thirty-five (35) minutes without all surgeons ⁵⁷⁸ and personnel being present.” The allegedly defamatory statements in counts five, six and seven are the same as statements described in Nurse Slear’s deposition in the federal suit.

Count eight alleged that Nurse Broussard told Dr. Macon that Dr. deLeon had been called “to see a patient in severe distress after the patient had fallen and struck his head near the right orbit and complained of chest pain and that the Plaintiff had failed to respond to this emergency for several hours and suggested that the patient died as a consequence of the Plaintiff’s inaction.” This complaint was the subject of the May 1985 letter by Dr. Macon to Dr. deLeon. Nurses Slear and Broussard moved for summary judgment and for sanctions, on the grounds that the action was barred by res judicata, collateral estoppel, and the statute of limitations. 3 The state court action was then stayed pending Dr. deLeon’s appeal in the federal case to the United States Court of Appeals for the Fourth Circuit. After the conclusion of the appeal in the federal case, the Circuit Court for Baltimore City (Ward, J.), by several orders, granted the defendants’ summary judgment motion with respect to all ten counts of Dr. deLeon’s amended complaint. On August 22, 1989, the court granted judgment for the defendants with regard to the first four counts on the grounds that they were barred by res judicata, collateral estoppel, and the statute of limitations.

In the same order, the circuit court denied the defendants’ motion for sanctions. On September 11, 1989, the court granted judgment for the defendants as to counts five, six, seven and eight, adopting the defendants’ arguments that these ⁵⁷⁹ counts were barred by res judicata and collateral estoppel. On October 3, 1989, the court granted judgment for the defendants on counts nine and ten. Dr. deLeon timely appealed to the Court of Special Appeals, which, in an unreported opinion, affirmed in part and reversed in part.

The intermediate appellate court stated that the trial court erred in granting summary judgment in favor of the defendants on the basis of res judicata and collateral estoppel. In the view of the Court of Special Appeals, none of the counts were barred by res judicata or collateral estoppel because the defendants in this case were not “in privity with the defendants in the prior case,” because the claims in the present case were not the same as any of the claims in the federal case, and because the issues to be litigated in the present case “were not matters actually litigated in the earlier suit.” Consequently, the Court of Special Appeals reversed the judgments for the defendants on counts five through ten, as the judgments on those counts had been based solely on principles of res judicata and collateral estoppel. The Court of Special Appeals, however, agreed with the circuit court’s alternate holding that counts one through four were barred by limitations, and the intermediate appellate court affirmed the judgments for the defendants on those counts. Dr. deLeon petitioned and Nurses Slear and Broussard cross-petitioned this Court for a writ of certiorari, and we granted both petitions.

DeLeon v. Slear, 321 Md. 449 , 583 A.2d 249 (1990). The issues raised concern whether the various counts were barred by res judicata, collateral estoppel, and limitations. As we shall conclude that the circuit court correctly held that all counts were barred by res judicata, we shall not reach the parties’ arguments with respect to collateral estoppel and limitations.

II

In Alvey v. Alvey, 225 Md. 386, 390 , 171 A.2d 92, 94 (1961), this Court set forth the traditional rule of res judicata as follows: ⁵⁸⁰ “The doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit....” The rule is designed to avoid the “ ‘expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.’ ” Murray International Freight Corp. v. Graham, 315 Md. 543, 547 , 555 A.2d 502, 503-504 (1989), quoting Montana v. United States, 440 U.S. 147, 153-154 , 99 S.Ct. 970, 973-974 , 59 L.Ed.2d 210, 217 (1979). The traditional principle of res judicata has three elements: (1) the parties in the present litigation should be the same or in privity with the parties to the earlier case; (2) the second suit must present the same cause of action or claim as the first; and (3) in the first suit, there must have been a valid final judgment on the merits by a court of competent jurisdiction. Rowland v. Harrison, 320 Md. 223, 229 , 577 A.2d 51, 54 (1990); Shum v. Gaudreau, 317 Md. 49, 54 , 562 A.2d 707, 709-710 (1989); Cassidy v. Board of Education, 316 Md. 50, 57 , 557 A.2d 227, 230 (1989); Cicala v. Disability Review Bd., 288 Md. 254, 263 , 418 A.2d 205, 211 (1980); MPC, Inc. v. Kenny, 279 Md. 29, 32 , 367 A.2d 486, 488-489 (1977); Mettee v. Boone, 251 Md. 332, 341 , 247 A.2d 390, 395 (1968); Alvey v. Alvey, supra, 225 Md. at 390 , 171 A.2d at 94 ; Myers v. Gordon, 165 Md. 534, 538-539 , 170 A. 186, 187-188 (1934). Neither party disputes that the federal judgment is a valid final judgment on the merits by a court of competent jurisdiction.

See Mettee v. Boone, supra (summary judgment has preclusive effect); Restatement (Second) of Judgments § 19, comment g (1980) (summary judgment for the defendant is a valid and final judgment). Additionally, both parties recognize that the nurses were not parties to the ⁵⁸¹ federal action. The arguments before us concerning res judicata have primarily centered on two questions: (1) whether the nurses were in privity with a party to the federal action so as to be entitled to avail themselves of the protection of res judicata, and (2) whether this case presents the same claim or claims which Dr. deLeon presented in the federal action. A. Privity This Court has not squarely decided whether an employee is in privity with his employer, for purposes of res judicata, where a plaintiff brings a tort suit for damages against the employer, loses in the action against the employer, and then sues the employee for damages based upon tortious conduct occurring in the scope of employment and constituting the same “claim” as that involved in the earlier action. 4 Numerous other courts have addressed the issue, however, and have concluded that res judicata bars the plaintiffs suit against the employee in this situation.

For example, in Mackey v. Frazier, 234 S.C. 81 , 106 S.E.2d 895 (1959), a truck owner sued an individual whose automobile hit his truck. The automobile owner counterclaimed against the truck owner, alleging that the truck owner’s employee had been negligent in driving the truck. The judgment on the counterclaim was for the employer truck owner. Thereafter, the automobile owner brought a separate tort suit against the employee.

The Supreme Court of South Carolina framed the issue as follows ( 234 S.C. at 84 , 106 S.E.2d at 897 ): “[WJhether when one sues the master for personal injury, caused by the sole negligence of the servant, and, failing in such action, can he then bring another action against the servant, alleging the same acts of negligence as the proximate cause of his injury and damage?” ⁵⁸² The court relied on decisions from other states in reaching its conclusion that the claim against the employee was barred by the judgment on the counterclaim in favor of the truck owner. The Supreme Court of Arkansas in Davis v. Perryman, 225 Ark. 963, 966 , 286 S.W.2d 844, 845-846 (1956), reached the same conclusion when it said that “the cases from other jurisdictions are overwhelming in holding that an action like the present one cannot be maintained when a previous action by the same plaintiff against either the master or the servant for the same alleged act of negligence has been finally decided against the plaintiff in the Courts — State or Federal — of the same jurisdiction, and in which the scope of employment of the servant has been conceded at all times by the master and the only questions have been those of negligence and contributory negligence.” A case very much in point is Michelson v. Exxon Research & Engineering, 629 F.Supp. 418 (W.D.Pa.1986), affd, 808 F.2d 1005 (3d Cir.1987). Michelson, like the case at bar, involved separate defamation actions, one against the employer in federal court and one against another employee in state court. In Michelson, the plaintiff was the subject of an unfavorable performance review memorandum by a co-worker.

The co-worker sent the memorandum to his superiors, one of whom sent copies to other managers. After being discharged for his low performance rating, the plaintiff Michelson sued his former co-worker in state court for damages resulting from alleged defamation, misrepresentation and intentional interference with contractual relations. At the same time, Michelson filed in federal court a suit against the supervisor and the corporate employer for damages based on alleged defamation, misrepresentation, interference with contractual relations, and wrongful discharge. The state proceedings resulted in a judgment for the defendant.

The defendánts in the federal suit moved for summary judgment, raising the defense of res judicata. The federal court granted the motion for ⁵⁸³ summary judgment, holding that the state court decision against the plaintiff precluded his claims for defamation and interference with contract. The court said ( 629 F.Supp. at 423 ): “As to the identity of parties, defendant here faces liability for republication of allegedly defamatory material by an employee [the supervisor who was] not named in the state suit. As noted above, both [the co-worker and supervisor] were acting within the scope of their duties in their actions involving the memo. [The employer’s] potential liability therefore is exclusively vicarious.

Any judgment involving an employee for these acts would apply with the same effect to the employer, and vice versa. See Restatement (2d) of Judgments § 51 (1982). We thus find an effective identity of parties since both are bound by a judgment involving either of