Imperial v. Drapeau

RODOWSKY, Judge. This action was brought by a rescue squad emergency medical technician (EMT) against a physician who wrote identical, allegedly defamatory letters of complaint about the EMT to the Governor and to a member of Congress. As explained below we shall hold that the communications were absolutely privileged. The Bethesda-Chevy Chase Rescue Squad, Inc. (BCCRS), in addition to its emergency response service, transports patients by ambulance to hospitals under non-emergency circumstances.

The latter service is not limited to transportation to the nearest hospital. This litigation arises out of a request made June 28, 1995, by the defendant-petitioner, Dr. Roland Imperial (Imperial), to have the BCCRS transport his patient, Ruth England (England), to Sibley Hospital. At the time of the events described below England had been Imperial’s patient for fifteen years. She was eighty years old and suffered from cancer of the left lung, emphysema, asthma, heart failure, and a chronic duodenal ulcer.

During a hospitalization at Sibley from May 17 to June 13,1995, part of her left lung had been removed. England lived alone in an apartment in Bethesda, tended, at least part of the time, by a nurse’s aide. On June 28, 1995, at 11:30 a.m., in response to a telephone call from the nurse’s aide, Imperial examined England at her apartment. Imperial found his patient dehydrated, due to diarrhea and vomiting, and with low blood pressure, which Imperial attributed to medications and anemia.

He determined that the situation was not an emergency, but that England should be readmitted to Sibley, and he obtained by telephone the consent of one of England’s sons to that course of action. Imperial telephoned BCCRS, spoke with the dispatcher on duty, the plaintiff-respondent, Wayne A. Drapeau (Drapeau), and requested England’s non-emergency ambulance transport to Sibley. Imperial had already made arrangements with Sibley to admit his patient. Drapeau advised an ambulance crew to transport England to Sibley, but Drapeau was not a ⁴¹ member of the crew that responded.

When the ambulance arrived at England’s residence the two EMTs comprising the crew found England’s blood pressure to be 86/60 and that she was unaware of her surroundings. They determined that, under those circumstances, the applicable protocols required them to take England to the closest hospital, which was Suburban Hospital, rather than Sibley. Imperial does not have privileges at Suburban. Later that afternoon, when Imperial was unable to locate England at Sibley, he telephoned the BCCRS and spoke with Sergeant Patrick Geraghty, who informed him that England had been transported to Suburban. 1 Subsequently, on July 6, 1995, Imperial wrote two identical seven-page letters of complaint “RE: Abuse of Authority by Pvt.

Wayne Drapeau of the Bethesda Rescue Squad.” One letter was sent to Imperial’s congresswoman, Constance A. Morelia, while the other was sent to Governor Parris N. Glendening. The first three pages of the letter relate England’s medical history and emphasize that, when Imperial had telephoned for transportation, he asked for non-emergency service because the situation was not one of acute distress. The balance of Imperial’s letter raises a series of questions, to most of which Imperial gives his personal response. For example, he asks, “Why did Private Wayne Drapeau transport Ruth [England] to the Suburban Hospital Emergency Room?” Imperial’s answer is that Drapeau “panicked ... because of low blood pressure” and that he had a “lack of clinical skill and lack of knowledge on how to differentiate between Hypotension and Acute Shock,” and that Drapeau’s reading of the signs was “clinical incompetence.” Imperial asked, “What is ⁴² the qualification and how much training does Private Wayne Drapeau have to justify countermanding a physician’s specific and explicit order to transport Ruth to Sibley Hospital?” In answer Imperial reviewed his own qualifications and submitted that it was on his authority, as the attending physician, that “Drapeau” was even in England’s apartment.

Asking what the “bad effect of transporting” England to Suburban was, Imperial said that Suburban did not have England’s medical history. Suburban did not know that she was “infected with a Methicillin Resistant Staph Aureus” that required isolation, and Suburban did not know that she and her son did not want “heroic measures [taken] to prolong life.” Imperial, answering his own question as to whether Drapeau’s action was “unethical and illegal,” said that Drapeau countermanded the attending physician’s order; he “stole the patient without having the decency to say that he was transporting” England to Suburban; he disrupted fifteen years of excellent patient-physician relationship, and he caused Imperial to lose revenue for the almost two-week period that he would not be attending England at Suburban. The letter concluded: “Can the Rescue Squad be trusted with a sick patient when they disregard the Physician’s instruction? Are we giving the Rescue Squad extraordinary power to supercede an Attending Physician’s order? “I bring this to the attention of the office[s] of [the two addressees], to investigate this unethical and illegal misconduct by [BCCRS’s] Drapeau.

The investigation should be conducted by an Independent External Peer Review with no ties to the Rescue Squad Agency and to the Emergency Room Physician Society, to avoid the allegation of a cover up.” Governor Glendening forwarded his counterpart of the letter to the Maryland Institute for Emergency Medical Services Systems (MIEMSS). The Executive Director of the latter, by letter of August 29, 1995, wrote to Imperial advising that his “letter was received with great concern and a comprehensive ⁴³ review of [Imperial’s] patient’s care was conducted.” MIEMSS said that the EMTs had “acted in the best interest of the patient.” England’s “status [had] significantly deteriorated by the time the rescue squad arrived.” The EMTs assessed England to be “in profound shock” and, on her arrival at Suburban, her blood pressure was “65/30 as a result of a significant gastrointestinal hemorrhage due to the duodenal ulcer.” MIEMSS concluded that the EMTs had followed appropriately the applicable MIEMSS protocols. Congresswoman Morelia, stating that she “certainly share[d Imperial’s] concern,” forwarded Imperial’s letter to the County Executive of Montgomery County. The County Executive provided a copy of the letter to the Chief of BCCRS.

The BCCRS Chief deliberately withheld replying to Imperial until completion of the MIEMSS investigation. By a three-page, single-spaced letter of September 25, the Chief furnished Imperial with a step-by-step review of the EMTs’ actions, concluded that they had acted entirely appropriately, and strongly suggested that Imperial provide a written apology to Drapeau. Drapeau filed a complaint against Imperial in the Circuit Court for Montgomery County, alleging defamation. After Imperial had moved to dismiss, and Drapeau had amended his complaint, Imperial moved for summary judgment.

The court granted the motion, ruling that the publications of the matter complained of were either absolutely privileged or were conditionally privileged, without any evidence of malice. The Court of Special Appeals, in an unreported opinion, reversed and remanded. That court, in rejecting absolute immunity, said that Imperial’s request for an investigation at the end of his seven-page letter “cannot insulate defamatory remarks.” The court reasoned that, were it so to hold, “all defamatory statements, if accompanied by a vague request for some kind of an investigation, would be completely immune from redress. That is not, and should not, be the law.” We granted Imperial’s petition for certiorari and Drapeau’s conditional cross-petition.

Of the many issues raised, we need ⁴⁴ consider only the question of absolute immunity. In doing so we apply the standard of review for a grant of summary judgment, namely, whether the trial court was legally correct. Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 204 , 680 A.2d 1067, 1076 (1996). As we explain below, the circuit court was legally correct in its alternate holding that absolute immunity applied.

The applicability of absolute privilege to circumstances like those here present evolved from the common law rule under which a person is fully protected from any threat of potential liability in defamation for testimony given as a witness in a judicial proceeding. Rosenberg v. Helinski, 328 Md. 664, 676 , 616 A.2d 866, 872 (1992), cert. denied, 509 U.S. 924 , 113 S.Ct. 3041 , 125 L.Ed.2d 727 (1993); Odyniec v. Schneider, 322 Md. 520, 526 , 588 A.2d 786, 789 (1991); Miner v. Novotny, 304 Md. 164, 170 , 498 A.2d 269, 272 (1985); Adams v. Peck, 288 Md. 1, 3 , 415 A.2d 292, 293 (1980); Korb v. Kowaleviocz, 285 Md. 699, 704 , 402 A.2d 897, 899 (1979); see also Restatement (Second) of Torts § 588 (1977). This absolute privilege shields speakers from liability even if their motives were malicious, or they knew the statement was false, or their conduct was otherwise unreasonable. Rosenberg, 328 Md. at 676 , 616 A.2d at 872 ; Odyniec, 322 Md. at 527 , 588 A.2d at 789 ; Adams, 288 Md. at 3 , 415 A.2d at 293 ; Maulsby v. Reifsnider, 69 Md. 143, 164 , 14 A. 505, 511 (1888).

Moreover, the privilege applies even if the allegedly defamatory statement is irrelevant to the proceeding. Miner, 304 Md. at 171 , 498 A.2d at 272 ; Korb, 285 Md. at 701-02 , 402 A.2d at 898 . The longstanding rationale for the privilege is that it is of “great importance to the administration of justice that witnesses should testify with minds absolutely free from the apprehension of being annoyed by civil actions for any thing they may say as witnesses . . . . ” Hunckel v. Voneiff, 69 Md. 179, 198 , 17 A. 1056 , 1057 (1889). See Odyniec, 322 Md. at 528 , 588 A.2d at 789-90 ; Miner, 304 Md. at 171 , 498 A.2d at ⁴⁵ 272 ; Gersh v. Ambrose, 291 Md. 188, 192 , 434 A.2d 547, 549 (1981); Adams, 288 Md. at 8 , 415 A.2d at 295 .

As a matter of public policy, the balance is struck heavily in favor of the free disclosure of information during a judicial proceeding. In order to achieve this balance, those who participate in the judicial process must be able to do so without the specter of potential civil liability for defamation hanging over their heads. Rosenberg, 328 Md. at 676-77 , 616 A.2d at 872 ; Odyniec, 322 Md. at 528 , 588 A.2d at 790 ; McDermott v. Hughley, 317 Md. 12, 23-24 , 561 A.2d 1038, 1044 (1989). See also W.P. Keeton & W. Prosser, Prosser and Keeton on the Law of Torts § 114 (5th ed.1984).

This Court, in accordance with the majority of other jurisdictions, has taken a “broad view” of the scope of the privilege, holding that this “important privilege” extends to administrative and other quasi-judicial proceedings. Keys v. Chrysler Credit Corp., 303 Md. 397, 404 , 494 A.2d 200, 203 (1985); see also Gersh, 291 Md. 188 , 434 A.2d 547 . As one commentator has noted: “There is no precise definition of what qualifies as a ‘judicial proceeding’ for the purposes of the absolute privilege; but it clearly extends to tribunals other than courts. The term is employed in a flexible fashion to embrace any governmental proceeding involving the exercise of a judicial or quasi-judicial function, including a wide variety of administrative boards, commissions, or other tribunals which may engage in judicial or quasi-judicial action though not part of the court system.” R.A. Smolla, Law of Defamation § 8.03[3][a] (1986, 1996 Supp.) (footnotes omitted).

In Gersh , this Court declined to extend the judicial privilege to cover voluntary statements made by a witness testifying before the Baltimore City Community Relations Commission. Testimony before that commission, we reasoned, was functionally equivalent to that at “an ordinary open public meeting,” at which there were no procedural safeguards for a person who might be defamed. Gersh, 291 Md. at 196 , 434 A.2d at 551 . ⁴⁶ Thus, “[t]he public benefit to be derived from testimony at Commission hearings of this type is not sufficiently compelling to outweigh the possible damage to individual reputations to warrant absolute witness immunity.” Id. Whether statements in an administrative proceeding are within the ambit of the absolute privilege is “decided on a case-by-case basis and ... in large part tum[s] on two factors: (1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.” Id. at 197 , 434 A.2d at 551-52 .

Nor is the privilege limited to testimony given as a witness in the course of a hearing, whether judicial or administrative. In Miner, 304 Md. 164 , 498 A.2d 269 , this Court, applying the two Gersh factors, held that the absolute privilege protects a citizen who files a brutality complaint against a police officer. In that case Novotny, within two days of his arrest for driving while intoxicated, filed a sworn complaint against the arresting officer with the officer’s superior, alleging that Novotny had been kicked, choked, and otherwise abused during and after his arrest. After an internal investigation had found no misconduct, the officer sued Novotny for defamation.

Id. at 166, 498 A.2d at 270 . This Court recognized that the abuse of the “formidable power” vested in law enforcement officers is “extremely detrimental to the public interest.” Id. at 176 , 498 A.2d at 274-75 . We said: “Citizen complaints of such abuses, and the administrative disciplinary procedure which has been developed to investigate these complaints, serve a public function of vital importance by providing a mechanism through which abuses may be reported to the proper authorities, and the abusers held accountable. “The viability of a democratic government requires that the channels of communication between citizens and their public officials remain open and unimpeded. Were complaints such as Novotny’s not absolutely privileged, the possibility of incurring the costs and inconvenience associat ⁴⁷ ed with defending a defamation suit might well deter a citizen with a legitimate grievance from filing a complaint.” Id. at 176 , 498 A.2d at 275 .

Further, in the investigation resulting from Novotny’s complaint, and at any disciplinary hearing that might result, the officer would enjoy the protections of the “Law-Enforcement Officers’ Bill of Rights,” Maryland Code (1957, 1996 Repl.Vol.), Art. 27, §§ 727 through 734D. Miner, 304 Md. at 173 , 498 A.2d at 273 . This Court held that the procedural safeguards under that statute were sufficient to protect the officer. Id. at 174-75 , 498 A.2d at 274 .

In particular, we noted that the statute required that a police brutality complaint be under oath and, in the case of an adult victim, be made by a person having personal knowledge; the statute imposed criminal penalties for false complaints; it provided for mechanisms to inform the officer of the subject of the investigation; and it guaranteed the officer the right to be represented by counsel when interrogated. Id. Additionally, any hearing was adversarial, with witnesses under oath and subject to cross-examination. Id. at 175 , 498 A.2d at 274 .

In Odyniec, 322 Md. 520 , 588 A.2d 786 , this Court held that the witness privilege extended to statements made by a physician while medically examining the claimant in a personal injury action. The reported case involved a sequence of three physicians. The first physician had operated on the patient’s knee, with a poor result. The patient consulted the second physician who concluded that the first physician had lacerated the patient’s popliteal artery, which the second physician repaired.

The patient then filed a claim with the Health Claims Arbitration Office (HCAO) against the first physician for medical malpractice. In preparing to defend, the first physician arranged to have the patient examined by a third physician. In the course of that examination the third physician told the patient that she had been lied to by the second physician and that the first physician had never ligated the popliteal artery. The reported decision was rendered in the defamation action brought by the second physician against the third physician. ⁴⁸ The claim was defended on the ground of absolute witness immunity.

In opposition, the plaintiff contended (1) that the HCAO was not exercising any judicial or quasi-judicial functions, (2) that the third physician’s statements exceeded his potential function as a witness before the HCAO, (3) that no judicial safeguards were present, (4) that a particular HCAO panel does not exercise any judicial power, and (5) the expert’s statements were not before the HCAO panel but “were uttered in a setting lacking all attributes of an adversary proceeding,” ie., a medical examination. Id. at 525-26 , 588 A.2d at 788-89 . Rejecting these arguments, this Court reasoned: “Gersh, Miner, and McDermott [discussed infra ] thus stand for the proposition that absolute witness immunity will not be extended to a nonjudicial proceeding unless the same policy considerations which underlie the application of the privilege in the judicial sphere are also present. It must appear from the nature and conduct of the proceeding that society’s benefit from unfettered speech during the proceeding is greater than the interests of an individual who might be defamed during that proceeding.” Id. at 531, 588 A.2d at 791 .

On balance, this Court concluded that the privilege applied. Requisite procedural safeguards were present in an HCAO proceeding which was “at least as functionally comparable to a trial before a court as the administrative disciplinary proceedings involved in Miner.” Id. at 534 , 588 A.2d at 792 . Further, “[t]he social benefit derived from free and candid participation by potential witnesses in the arbitration process is essential to achieve the goal of a fair and just resolution of claims of malpractice against health care providers. At the same time, we are mindful of the damage that may be done to a health practitioner’s reputation by a defamatory statement.

But balancing the potential harm caused by such statement made during the pendency of the arbitration process against the societal value of maintaining the integri ⁴⁹ ty of the process itself, we accord greater weight to the latter. The strong public policy considerations which led us to accord an absolute privilege in Adams and Miner are equally present in the circumstances of the present case.” Id. at 534-35, 588 A.2d at 793 . See also Adams, 288 Md. at 8-9 , 415 A.2d at 295-96 (document prepared by psychiatrist for use in connection with a pending divorce proceeding held to be absolutely privileged); Arundel Corp. v. Green, 75 Md.App. 77, 83-85 , 540 A.2d 815, 818-19 (1988) (citing Restatement (Second) of Torts § 586 & cmts. a, e (1977)) (holding that attorney’s statements prior to commencement of litigation were absolutely privileged). In McDermott, 317 Md. 12 , 561 A.2d 1038 , we declined to extend the privilege to a psychological report prepared at the request of an individual’s employer.

In that case, the plaintiff was a trainee Park Police Officer with the Maryland-National Capital Park and Planning Commission. One aspect of the training involved horse-mounted field patrolling. During these exercises the plaintiff experienced physical and psychological trauma and asked on multiple occasions that he be excused from the exercises. His employer ordered that he consult a psychologist.

The plaintiff claimed that the report ultimately prepared by the psychologist was defamatory; the doctor in turn claimed, inter alia, an absolute privilege for participants in a judicial proceeding. Id. at 15-16, 21-22 , 561 A.2d at 1040, 1043 . We held that the “insufficient procedural safeguards” outweighed whatever public value was to be found in having mental health care professionals insulated from liability over their diagnoses. Id. at 26 , 561 A.2d at 1045 .

In particular, “[t]here was no legally cognizable tribunal administering the proceeding; there was no public hearing adversary in nature; no compellable witnesses were sworn or cross-examined; no reviewable opinion or analysis was generated; and, most significantly, [the plaintiff] did not have the opportunity to present his side of the story.” Id. In the instant matter Drapeau cites Arroyo v. Rosen, 102 Md.App. 101 , 648 A.2d 1074 (1994), where the Court of Special ⁵⁰ Appeals declined to extend the absolute privilege for participants in judicial proceedings to statements made to academic bodies of inquiry by one scientist reporting allegedly unscientific practices by another scientist. Ultimately, most of the charges were found to be untrue; a defamation suit ensued, and the defamed scientist was awarded damages. The author of the defamatory statements urged an extension of the privilege to cover “testimony before bodies investigating allegations of scientific misconduct,” and argued that the public issue at stake included “the interest of society in the soundness of [scientific] research.” Id. at 108 , 648 A.2d at 1077 .

In declining to extend the privilege, then-Chief Judge Wilner wrote for the court that the total lack of procedural safeguards protecting a scientist who might be defamed before a private inquiry board was a consideration sufficient to outweigh the public’s interest in good science. Present in the instant matter are the factors that give rise to the absolute privilege. First, the importance to the public that all medical participants in the emergency medical system be competent is self-evident. Indeed, the General Assembly has made a legislative finding to that effect in Maryland Code (1978, 1997 Repl.Vol.), § 13-502 of the Education Article (Ed.). “(4) The citizens of Maryland are fortunate to have highly trained career and volunteer fire fighters, emergency medical technicians, and rescue squad personnel providing life-sustaining services in the field to ill and injured persons.” Because the quality of pre-hospital, emergency medical care can literally be a matter of life and death, it carries a very high priority.

Accordingly, public policy encourages the communication of information to public authorities responsible for maintaining the quality of emergency medical services. Fear of a potential defamation action discourages the reporting of any complaints, including those that the monitoring authorities would conclude, after investigation, are meritorious. In the instant matter there are procedural safeguards that adequately protected the reputation of a subject of a complaint ⁵¹ about emergency medical service. The subject complaint was investigated by MIEMSS.

MIEMSS is an independent state agency, located at the University of Maryland, Baltimore. Ed. § 13—503(b). The governing body of MIEMSS is the Emergency Medical Service Board (the EMS Board). Ed. § 13-503(c).

The principal statutory duty of the EMS Board is to “develop and adopt an Emergency Medical System plan to ensure effective coordination and evaluation of emergency medical services delivered in this State.” Ed. § 13-509(a). To that end the Executive Director of MIEMSS is to “[c]oordinate the training of all personnel in the Emergency Medical Services System and develop the necessary standards for their certification.” Ed. § 13-510(4). Any action, adverse to Drapeau, resulting from the investigation by MIEMSS could not be taken without Drapeau’s consent or without complying with the contested cases subtitle of the Maryland Administrative Procedure Act, Md.Code (1984, 1995 Repl.Vol.), §§ 10-201 through 10-227 of the State Government Article (SG). Different paths, however, lead to that conclusion.

There are various classifications of EMTs and, in 1995, the agency with ultimate disciplinary authority depended upon the class of EMT complained of. The letter to Imperial from MIEMSS advised that the responding EMTs had used “the Maryland Medical Protocols for Cardiac Rescue Technicians and Emergency Medical Technician-Paramedics” to determine England’s need. One inference from the use of these protocols is that at least one of the two responding EMTs was an EMT-Cardiac. A resident EMT-Cardiac (who is not a student) must have completed a course approved by the State Board of Physician Quality Assurance (the P.Q.A. Board) and by the Director of Emergency Medical Services.

That individual also must have been examined and certified as an EMT-Cardiac by the P.Q.A. Board. Md.Code (1981, 1994 Repl.Vol.), § 14-303(a) of the Health Occupations Article (HO); see also HO § 14-101(b). The P.Q.A. Board is authorized to reprimand or place on probation an EMT-Cardiac, or suspend or revoke the certifi ⁵² cation of an EMT-Cardiac, for any conduct prohibited under HO § 14-303 or under any regulation adopted by the P.Q.A. Board. HO § 14-303(c).

Before any disciplinary action can be taken under HO § 14-303, the EMT-Cardiac is entitled to a hearing, as provided by HO § 14-405(a). At this hearing the Maryland Administrative Procedure Act applies “except that factual findings shall be supported by clear and convincing evidence,” a higher standard than that ordinarily applicable to administrative proceedings. HO § 14-405(b). There are rights of review, first by the Board of Review of the Department of Health and Mental Hygiene, and then by a circuit court.

HO § 14-408(a). If at least one of the responding EMTs was an EMT-Paramedic, a classification more highly skilled than EMT-Cardiac, HO § 14-305 would apply. An EMT-Paramedic must be certified by the P.Q.A. Board. Violations by an EMT-Paramedic of § 14-305, or of any regulation adopted thereunder, are subject to the same sanctions as are EMTsCardiac, and EMTs-Paramedic enjoy the same procedural safeguards under HO § 14-405 as do EMTs-Cardiac.

In his letter to Imperial the BCCRS Chief describes the two responding members of the rescue squad as “Emergency Medical Technicians-Ambulance personnel [ (EMT-A) ].” An EMT-A is an individual “who has been tested and certified by MIEMSS to provide basic life support.” Maryland Regs. Code tit. 10, § 32.06.01B(6) (1980). EMT-A is a less skilled classification than EMT-Cardiac. MIEMSS establishes the qualifications for EMTs-A. See MIEMSS, EMT-A Testing & Certification Policies §§ 1-10 (July 1989).

MIEMSS also determines whether an EMT-A should be decertified. One ground for decertification is “[pjractice or performance [by an EMT-A] of any medical act not specified in the MIEMSS course objectives, or protocols as developed and/or approved by MIEMSS, consistent with the highest level of certification held by the prehospital care provider.” Id. § 10.1.5. “Omission of a medical act specified in the MIEMSS course objectives or protocols” is also a ground for decertification by MIEMSS. Id. § 10.1.6. ⁵³ The MIEMSS decertification procedure begins with the referral of any complaint that has been received to the local Emergency Medical System Authority. Id. § 10.

The local authority’s investigation “shall be made confidentially,” although the individual against whom the complaint has been filed “shall be notified at the investigation stage that the investigation is in process.” Id. The local Emergency Medical System Authority submits findings and a recommendation to the Director of MIEMSS. Before the Director of MIEMSS may order any disciplinary action, written notice, stating the issues or charges, must be sent by certified mail to the subject of the complaint and to the local authority at least thirty days before the hearing. Id.

Any hearings before the Director of MIEMSS are to be conducted in accordance with the Maryland Administrative Procedure Act. Id. 2 Drapeau contends that the absolute privilege for witness testimony, as extended, cannot reach the instant matter because Imperial’s complaint was not made directly to the appropriate body exercising disciplinary authority. We reject so technical a restriction on the privilege. The ordinary citizen need not, at the peril of defending a defamation action, sort through the complexities of governmental organization in a system of dual sovereigns, with county, municipal, and special taxing district overlays on the State component.

This case is particularly illustrative. As we have seen