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Roland Imperial v. Wayne A. Drapeau, No. 103, September Term, 1997.

[Defamation - Physician's letter to Governor and to Member of Congress vigorously complained of conduct of emergency medical technician and asked for investigation. Held: Letter absolutely privileged under same privilege applicable to police brutality complaints.]

Circuit Court for Montgomery County Case # 148686 Civil

IN THE COURT OF APPEALS OF MARYLAND No. 103 September Term, 1997 _________________________________________

ROLAND IMPERIAL

v.

WAYNE A. DRAPEAU

_________________________________________ Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ. _________________________________________ Opinion by Rodowsky, J. Bell, C.J., Chasanow & Wilner dissent. _________________________________________ Filed: August 27, 1998

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 nonemergency 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 defendantpetitioner, 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.

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Imperial telephoned BCCRS, spoke with the dispatcher on duty, the plaintiffrespondent, 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 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. Morella, while the other was sent to Governor Parris N. Glendening. The first three pages of the letter relate England's

Imperial's position is that, when he telephoned the BCCRS, he was told that Drapeau was the person who decided that England should be taken to Suburban. Sergeant Geraghty recalls the conversation with Imperial concerning where Imperial's patient had been taken, but Sgt. Geraghty has no recollection of telling Imperial that Drapeau had made the decision, and states that it would have been contrary to his usual practice to do so. The conflict, if such it is, is not material to our disposition of this matter as a question of law.

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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 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

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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 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 Morella, 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

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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 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, 68

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0 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

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