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Burns v. Levy

United States District Court, District of Columbia

March 14, 2019

MATTHEW D. LEVY, et al., Defendants.



         Defendants Matthew D. Levy and Medstar Georgetown University Hospital (the “Hospital”)[2] invoke the peer review privilege in this jurisdiction to shield themselves from Plaintiff Antoinette Burns' claim of negligent defamation.[3] Because the Court finds that the United States Air Force entities to which Defendants provided certain information about Plaintiff do not qualify as “peer review bodies” under the relevant statute, that privilege is not available to Defendants.

         Upon consideration of the briefing, [4] the relevant legal authorities, and the record as a whole, the Court DENIES Defendants' [86] Joint Motion for Partial Summary Judgment as to the Applicability of the District of Columbia Peer Review Act to Plaintiff's Counts of Defamation. Plaintiff's negligent defamation claim must continue to trial along with her other remaining claim of intentional defamation.

         I. BACKGROUND

         A. Factual Background

         The Court examined the facts of this case in its prior summary judgment ruling, to which it refers the reader. See Mem. Op. at 3-12, Burns v. Georgetown Univ. Med. Ctr., Civil Action No. 13-898 (CKK), 2016 WL 4275585, at *2-*6 (D.D.C. Aug. 12, 2016) (“Burns I”), ECF No. 81. Here the Court focuses on those undisputed facts that are pertinent to the pending motion.

         Plaintiff served as a pediatrician in the United States Air Force, specifically working for the United States Air Force Medical Service (“AFMS”). Defs. Medstar Georgetown University Hospital's and Matthew D. Levy, M.D.'s Stmt. of Material Facts as to Which There Is No. Material Dispute in Supp. of Their Mot. for Partial Summ. J., ECF No. 86-2 (“Defs.' Stmt.”), ¶¶ 1, 2. As part of her military service, Plaintiff began pursuing a specialized pediatric fellowship at the Hospital in August 2011. See Id. ¶ 3; Pl.'s Stmt. of Disputed Material Facts and Additional Material Facts Not in Dispute, ECF No. 87-1 (“Pl.'s Stmt.”), ¶¶ 18, 19, 33.

         For reasons beyond the scope of this opinion, Plaintiffs participation prematurely terminated in April 2012. Pl.'s Stmt. ¶ 72. The Court need not address distinctions between the termination-related activities of the Hospital and Georgetown University Medical Center (the “University”), certain of which constitute a lingering contested issue. See infra Part I.B. In any case, also in April 2012, Defendant Levy, the Medical Director for Community Pediatrics, and Jamie S. Padmore, Vice President, Academic Affairs, Medstar Health, Inc., had a discussion about Plaintiff with two Air Force officials, including Colonel Thomas Grau, M.D., then-chief of the Physician Education Branch of AFMS. Defs.' Stmt. ¶ 5; Pl.'s Stmt. ¶¶ 38, 69. Col. Grau requested an evaluation of Plaintiff using a certain rubric. Defs.' Stmt. ¶ 5. His successor, Colonel Michael Tankersley, M.D., reiterated that request by email in December 2012 and January 2013. Id. ¶¶ 7, 11. By January 2013, the Air Force Centralized Credentialing Verification Office (“AFCCVO”) had also sent a request for certain information, which Col. Tankersley took the opportunity to reinforce in his communication that month. Id. ¶¶ 10, 11.

         B. Procedural Posture

         In this lawsuit, Plaintiff pursued contract-based claims, defamation claims, and a claim of intentional interference with prospective economic advantage against a combination of the Hospital, the University, and Levy. 2d Am. Compl., No. 26. The Court granted summary judgment for all three Defendants as to all claims and dismissed Plaintiffs case. Burns I, Civil Action No. 13-898 (CKK), 2016 WL 4275585. On appeal, the D.C. Circuit affirmed dismissal of all but the defamation claims, as to which it reversed and remanded to this Court for certain further determinations. Burns v. Levy, 873 F.3d 289 (D.C. Cir. 2017) (“Burns II).

         Upon remand, this Court determined that one of the lingering issues-whether the Hospital or the University was first to terminate Plaintiff-could not be resolved by further summary judgment briefing, based on the D.C. Circuit's characterization of the record. Scheduling and Procedures Order, ECF No. 85, at 1-2 (citing Burns II, 873 F.3d at 292, 295)). The Court reserved that issue for trial. Id. at 2. The other issue-the applicability of the District of Columbia's Health Care Peer Review Act-is the subject of the present briefing. See Id. at 1.


         Summary judgment is appropriate where “the movant shows that there is 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). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         A party attempting to place a fact beyond dispute, or to show that it is truly disputed, must (a) rely on specific parts of the record, such as documentary evidence or sworn statements, or (b) “show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-C W A, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

         When faced with a motion for summary judgment, the district court may not assess credibility or weigh evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with “all justifiable inferences . . . drawn in his favor.” Anderson, 477 U.S. at 255. “If material facts are at issue, or though undisputed, are susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal quotation marks omitted). In the end, the district court's task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50.


         Some decades or further ago, health care entities developed a practice of “peer review, ” whereby, for example, medical professionals exchange information to gauge the qualifications of prospective colleagues and monitor the performance of current colleagues. See generally, e.g., 41 C.J.S. Hospitals § 16 (2019). Although this process has taken various forms, it is safe to say that the permutations share a common goal: to ensure a well-functioning medical system that ultimately inures to the benefit of patient care.

         An effective peer review process requires candor on the part of those providing sensitive assessments of their colleagues. The quid pro quo for that frankness is the assurance that recipients will treat the information as confidential. But the assessor supplying the information wants something more: Immunity from liability in the event that the assessee or someone else is unhappy with the sharing-or perhaps the candor thereof.

         The pending Joint Motion generally concerns the availability of this immunity; it is to this facet of peer review protections that the Court shall refer with the term, “peer review privilege.” Only one narrow issue is dispositive here: Whether the specific recipients of the sensitive information in this case qualify as “peer review bodies” under the statute establishing the privilege in this jurisdiction, the District of Columbia's Health Care Peer Review Act, D.C. Code §§ 44-801 et seq. For the reasons that follow, that answer is no. As a result, those who furnished the sensitive information cannot rely on the peer review privilege in their own defense.

         The parties' briefing was of limited assistance in reaching this conclusion. For one thing, Defendants tried to bootstrap the nature of the information exchanged to support rather thin attempts to show that certain U.S. Air Force entities satisfy the definition of peer review bodies. See, e.g., Defs.' Mem. at 11-14. Moreover, the case law construing the Health Care Peer Review Act is scant. The parties have not identified any cases, nor has the Court found any, that address the scope of the District of Columbia's peer review privilege in more than cursory fashion. See Oguntoye v. Medstar Georgetown Univ. Hosp., Civil No. 2013 CA 5054, 2015 D.C. Super. LEXIS 6, at *11-*12 (D.C. Super. Ct. Apr. 3, 2015) (briefly concluding that putatively false information was instead an opinion, and therefore did not breach D.C. privilege); Ali v. MedStar Health, Civil Action No. 99ca001753, 2003 D.C. Super. LEXIS 32, at *10 (D.C. Super. Ct. Aug. 15, 2003) (citing defendants' argument that D.C. privilege applies, but proceeding exclusively under related federal statute).[5] The scope of the privilege is not really at issue though.

         The Court need only determine whether the statutory definition of a peer review body encompasses the U.S. Air Force entities in this case. Reported cases touching on that definition appear to be limited to the context of discovery and admissibility under D.C. Code § 44-805. See Ervin v. Howard Univ., 445 F.Supp.2d 23 (D.D.C. 2006); Stone v. Alexander, 6 A.3d 847 (D.C. 2010); see also Jackson v. Scott, 667 A.2d 1365 (D.C. 1995) (implicitly relying on, but not citing, relevant definition). These few cases help to illuminate the statutory scheme and, to some extent, the definition of a peer review body. But because this case turns more closely on underexamined parts of that definition, the Court must proceed primarily by its own lights. First, the Court shall introduce the Air Force entities that Defendants propose to qualify as one or more peer review bodies.

         A. Relevant U.S. ...

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