Soentgen v. Quain & Ramstad Clinic, P.C., 900170

• Decision Date: 21 February 1991
• Docket Number: No. 900170,900170
• Citation: 467 N.W.2d 73
• Court: North Dakota Supreme Court
• Parties: Mary Louise SOENTGEN, Plaintiff and Appellant, v. QUAIN & RAMSTAD CLINIC, P.C., Medcenter One, Inc., a corporation, Terrance G. Brosseau, individually and as an agent of Medcenter One, Defendants and Appellees. Civ.

Page 73

467 N.W.2d 73

Mary Louise SOENTGEN, Plaintiff and Appellant, v. QUAIN & RAMSTAD CLINIC, P.C., Medcenter One, Inc., a

corporation, Terrance G. Brosseau, individually

and as an agent of Medcenter One,

Defendants and Appellees.

Civ. No. 900170.

Supreme Court of North Dakota.

Feb. 21, 1991.

William C. Severin (argued), of Severin & Ringsak, Bismarck, for plaintiff and appellant.

Lyle W. Kirmis (argued) and Kathleen K. Davison (appearance), of Zuger, Kirmis, Bolinske & Smith, Bismarck, for defendant and appellee Quain & Ramstad Clinic.

Timothy D. Lervick (argued), of Rolfson Schulz Lervick Law Offices, Bismarck, for defendants and appellees Medcenter One and Terrance G. Brosseau.

MESCHKE, Justice.

Mary Louise Soentgen appealed from a summary judgment dismissing her suit for defamation and wrongful discharge against Quain & Ramstad Clinic (Q & R), Medcenter One, and Terrance G. Brosseau, individually and as an agent of Medcenter One, and awarding attorney's fees to the defendants.

We affirm the summary judgment and reverse the attorney's fees.

Q & R hired Soentgen as a neonatologist in 1982. In 1984, Q & R and Soentgen executed a written employment contract for a five-year term from September 1, 1984 through August 31, 1989. The contract said that Q & R could terminate Soentgen's employment "at any time within 120 days notice with cause." Because neonatology is a hospital-based specialty, Soentgen performed the Q & R contract at Medcenter, where she was granted partial staff privileges in the obstetrical department, and full staff privileges in the pediatric, pediatric ICU, and neonatology departments.

In 1986 the Medcenter nursing staff reported concerns about Soentgen's patient care. Those concerns were forwarded to Brosseau, the President and Chief Executive Officer of Medcenter, and he advised the nursing staff to continue to monitor Soentgen's patient care. At Medcenter's request, Carlos Ahumada, a board certified neonatologist at the Fargo Clinic, reviewed and evaluated records for some of Soentgen's patients. Ahumada opined that Soentgen needed more medical education in intubation, ventilation, and nutrition management. Brosseau also received added reports from the nursing staff that Soentgen had reported for work with alcohol on her breath and slurred speech on April 3 and on the morning of April 7, 1987.

On the afternoon of April 7, 1987, Brosseau and Everett Colbert, the administrator of Q & R, met with Soentgen. According to Brosseau, he and Colbert mutually decided to offer Soentgen a voluntary leave of absence for four to six weeks and to request that she obtain continuing medical education during that time. According to Soentgen,

she was summoned to the office of Terry Brosseau, where, in the presence of Ev Colbert, the Executive Officer of Q & R Clinic, her employer, she was accused of being alcoholic or drug addicted, that she did not have the care and concern for her patients as she previously had, was told that Dr. Kotrapu or Dr. Grassy had agreed to take her patients, and that she was told that she was required to take a four to six weeks' leave starting immediately, that it was mandatory, and that if she did not do so, Brosseau would take action legally to have her removed.

Soentgen testified in her deposition that she believed the focus of the meeting was about drug and alcohol abuse:

Terry walked in, and Mr. Brosseau was the first one to say anything, and he said, "What I have to talk to you about is not pleasant." He sat down and he asked me if I was on drugs and/or alcohol, that he had had complaints about me, that I had been accused of being on drugs and alcohol, the nurses informed him that I was not accessible, I was less accessible not only for the babies but to them, my personality had changed, my disposition had changed, my gait was not correct, my speech had changed, they had trouble waking me at night, the nurses had told him that my housekeeper told them she was having trouble getting me awake, that the phone would ring as much as 15 times and there would be no answer, and that my care of the infants was not as good anymore, I wasn't as concerned about them, that I had to leave that day, take a vacation or a mandatory leave of absence, and if I didn't do it that day he would do something legally.

Later in April 1987, Medcenter and Q & R both sent Soentgen letters by certified mail inquiring about her plans for training in intubation, ventilation, and nutrition management.

On May 5, 1987, Soentgen's attorney wrote Colbert and Brosseau for an explanation of Soentgen's current and future status. On May 11, 1987, Soentgen and her attorney met with Brosseau and Colbert to discuss the circumstances of the April 7 meeting. Thereafter, Soentgen did not take any steps to secure additional training or continuing education, and she did not contact the defendants about returning to work or take any internal administrative steps to contest the defendants' actions. On June 30, 1987, she sued Q & R, Medcenter On July 29, 1987, Q & R notified Soentgen that a hearing would be held on August 12, 1987, to determine whether or not cause existed to terminate her contract with Q & R. After the hearing, Q & R terminated Soentgen's contract, concluding that her job performance and competency were inadequate based on clinic standards for intubation, ventilation, and nutrition management, and that her job performance, competency, and physical condition were inadequate on two occasions during the first week of April 1987. By letter dated August 14, 1987, Colbert notified Soentgen that her contract with Q & R would be terminated in 120 days and that Q & R would continue to pay her salary until then. Q & R paid her salary until December 16, 1987.

and Brosseau, alleging defamation, wrongful discharge, interference with contract, discrimination, and violation of her constitutional rights.

The defendants moved for summary judgment in Soentgen's lawsuit. Soentgen voluntarily dismissed her claim for violation of her constitutional rights. The trial court granted summary judgment dismissing Soentgen's remaining claims. Pursuant to NDCC 28-26-01(2), the trial court also awarded attorney's fees of $12,722.41 to Q & R and of $9,830.20 to Medcenter and Brosseau. Soentgen appealed.

We use standards applicable to summary judgment in our review. In Eckmann v. Northwestern Federal Savings & Loan Association, 436 N.W.2d 258, 260 (N.D.1989), we recently outlined these standards:

Summary judgment under Rule 56, N.D.R.Civ.P., is a procedural device available for the prompt and expeditious disposition of cases without trial when, after viewing the evidence in a light most favorable to the opposing party and giving that party the benefit of all inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts.... Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon his pleadings but must present competent evidence by affidavit or other comparable means which raises an issue of material fact.... The plain language of Rule 56 requires the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of a factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial.... When no pertinent evidence on an essential element is presented to the trial court in resistance to the motion for summary judgment, it is presumed that no such evidence exists. [Citations omitted.]

On appeal from a summary judgment, we view the evidence in the light most favorable to the party against whom summary judgment was granted, and we give that party the benefit of all favorable inferences that can be reasonably drawn from the evidence. Matter of Estate of Herr, 460 N.W.2d 699 (N.D.1990). We examine Soentgen's claims within that framework.

DEFAMATION

Soentgen argues that, at the April 7 meeting with Brosseau and Colbert, she was slandered ¹ by statements that "she had slurred speech at night; her gait had changed; her eyes were blood shot; she was hard to wake; she didn't care for patients; and her abilities were poor." She argues that summary judgment on her defamation claims was improper because the The trial court determined that Q & R's agent, Colbert, did not make any false statements at the April 7 meeting and therefore Q & R did not defame Soentgen. The trial court also viewed Brosseau's statements as a recitation of complaints by Medcenter's nursing staff that were not false, were not published to a person who understood them to be false, and were privileged. The trial court concluded that when Soentgen agreed to abide by Medcenter's bylaws she consented to the statements for the efficient administration of the hospital.

trial court made factual findings in favor of the defendants and against her.

It is well established that there is no liability for defamatory statements that are privileged. NDCC 14-02-03; 14-02-04(3); e.g., Emo v. Milbank Mutual Ins. Co., 183 N.W.2d 508 (N.D.1971); Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582 (1941). Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake. Prosser & Keeton on Torts (5th Ed.) 1984 Secs. 114, 115; Restatement (2nd) of Torts, Conditional Privileges, pp. 242-43, 258; 50 Am.Jur.2d, Libel and Slander, Sec. 195 (1970). The existence of privilege disposes of Soentgen's defamation claims.

Privilege is either absolute or qualified. Farmers Educational & Cooperative Union of America v. WDAY, Inc., 89 N.W.2d 102 (N.D.1958), aff'd 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959); see Prosser & Keeton on Torts at Secs. 114, 115. Absolute...