ANGELA MAGGARD, M.D. APPELLANT
BRUCE KINNEY, M.D. APPELLEE
REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-001127-MR FLOYD
CIRCUIT COURT NO. 09-CI-00239
COUNSEL FOR APPELLANT: Kevin Crosby Burke Jamie Kristin Neal
BURKE NEAL PLLC Ray Stanley Jones, II THE LAW OFFICES OF RAY
S. JONES, P.S.C.
COUNSEL FOR APPELLEE: Tamela White Erik Legg FARRELL, WHITE
& LEGG PLLC
years ago in Breathitt County Board of Education v.
Prater, 292 S.W.3d 883 (Ky. 2009), this Court recognized
that the denial of a substantial claim of absolute immunity
entitled the claimant to an immediate appeal. Noting that
immunity entitles the possessor to be free from the burdens
of litigation, not merely liability, and that such
entitlement could not be fully vindicated following a final
judgment, we authorized an exception to the final judgment
rule for appellate jurisdiction, an exception patterned on
the federal collateral order doctrine. Several years later,
in Commonwealth v. Farmer, 423 S.W.3d 690 (Ky.
2014), we addressed the attempted interlocutory appeal of the
denial of self-defense immunity in a criminal case. The
Kentucky Constitution and the appellate jurisdiction statute,
Kentucky Revised Statute (KRS) 22A.020, precluded that type
of criminal interlocutory appeal but we noted that even in
the absence of the constitutional and statutory constraints,
the collateral order doctrine would not allow it.
we encounter an interlocutory appeal from the denial of a
judicial statements privilege in litigation between two
physicians, and unequivocally deem the matter before us to be
well beyond the parameters of appellate interlocutory
jurisdiction. A privilege is not synonymous with or
equivalent to immunity because it does not relieve the holder
of the burdens of litigation or even, necessarily, the
imposition of liability. Moreover, as we noted in
Farmer, the collateral order doctrine authorizes
immediate appeal of orders that conclusively determine an
important issue separate from the merits of the action and
that are effectively unreviewable on appeal from a final
judgment but, even then, only in those circumstances where
allowing the case to proceed would imperil a substantial
public interest. Id. at 697. This case does not meet
those criteria. Because neither the Court of Appeals nor this
Court has appellate jurisdiction of this unauthorized
interlocutory appeal, we vacate and remand to the trial court
for further proceedings in this case.
AND RELEVANT PROCEDURAL BACKGROUND
in the mid-2000s, Dr. Angela K. Maggard and Dr. Bruce Kinney
practiced obstetrics and gynecology in Prestonsburg,
Kentucky. Both physicians performed procedures at Highlands
Regional Medical Center (HRMC), but worked at separate
medical practices and competed for patients. Dr. Maggard
alleges that Dr. Kinney engaged in a pattern of conduct
intended to damage her reputation and lure her patients to
his medical practice.
Maggard claims, among other things, that Dr. Kinney enticed
Kathy Harless, a former patient of Dr. Maggard's, to file
a medical malpractice action against her. In 2005, after Dr.
Maggard performed a hysterectomy on Harless, she complained
of incontinence and Dr. Maggard referred her to a urologist.
The urologist diagnosed her with a condition where an
abnormal tract develops between the bladder and the vagina,
allowing the involuntary discharge of urine. Harless claimed
that, after Dr. Maggard heard the diagnosis, she called and
admitted to accidentally cutting a hole in Harless's
bladder during the surgery, but Dr. Maggard strongly denied
this allegation. After Dr. Maggard's practice refused to
pay Harless's medical bills, Harless filed a Federal Tort
Claims Act action in the United States District Court for the
Eastern District of Kentucky. Harless later confirmed that Dr.
Kinney had told her husband she should sue Dr. Maggard for
medical malpractice and that he would help them find an
Kinney served as Harless's sole expert witness at the
bench trial and opined that Dr. Maggard's actions fell
below the standard of care, which resulted in Harless's
injury. The federal district judge eventually entered
judgment in favor of the United States based on the lack of
proof that Dr. Maggard caused any injury. In so ruling, the
judge further specifically found that Dr. Kinney lacked
objectivity and credibility as a witness.
Harless's federal case was pending, Dr. Kinney filed a
grievance against Dr. Maggard with the Kentucky Board of
Medical Licensure (KBML). He accused Dr. Maggard of
performing unnecessary procedures, breaking a newborn's
skull during delivery, falsifying medical records, defrauding
Medicaid, engaging in fraudulent billing and referral
practice, and of being a pathological liar. Dr. Kinney's
grievance referred to eleven patients, three of whom Dr.
Maggard never even treated. Dr. Maggard also claims that Dr.
Kinney encouraged at least two of her former patients to file
grievances. The KBML determined that all of the grievances
lacked merit and dismissed them.
addition to the statements made before the KBML, Dr. Maggard
alleges that Dr. Kinney made false and defamatory statements
to hospital administrators, physicians, and staff members at
HRMC where both of them were on staff. Dr. Maggard supports
these allegations through the testimony of Dr. Enrico Ascani,
another obstetrician/gynecologist practicing at HRMC. Dr.
Ascani testified that Dr. Kinney told him he would run Dr.
Maggard out of business. Additionally, Dr. Ascani confirmed
that during a staff meeting where Dr. Maggard was elected the
Chairperson of obstetrics and gynecology, Dr. Kinney referred
to her as "black-hearted and evil." These
statements were allegedly also made to other physicians and
administrators at HRMC.
March 4, 2009, Dr. Maggard filed a Complaint in Floyd Circuit
Court, asserting that Dr. Kinney: (1) libeled and slandered
her in his federal case testimony during the Harless case;
(2) libeled and slandered her in his KBML grievance; (3) made
false statements to her colleagues, patients, hospital
administrators, and the KBML; (4) violated KRS
311.590 by providing false and fraudulent
information to the KBML; (5) wrongfully used civil
proceedings by filing false KBML grievances and recruiting
others to do the same; and (6) committed abuse of process by
reporting her to the KBML, and causing others to report her,
for purposes other than discipline.
Kinney moved to dismiss Dr. Maggard's Complaint but the
trial court denied the motion. Thereafter, Dr. Kinney filed
an Answer in which he asserted the judicial statements
privilege as a defense. After Dr. Kinney's Answer,
nothing happened in the case for nearly two years. During
2011 through 2013, the trial court conducted several pretrial
conferences and the parties engaged in a few discovery
attempts, but otherwise little activity occurred. In December
2013, Dr. Maggard filed an Amended Complaint, asserting
claims regarding the defamatory statements Dr. Kinney made in
relation to the KBML proceedings in addition to the Harless
case testimony. On January 17, 2014, Dr. Kinney again filed a
motion to dismiss the Amended Complaint, asserting immunity
under the judicial statements privilege and citing Morgan
& Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d
599 (Ky. 2011). Dr. Kinney argued that the judicial
statements privilege deemed applicable to the Kentucky Bar
Association (KBA) disciplinary proceedings in Botts
also applied to the statements he made during the KBML
proceedings, warranting dismissal of the Amended Complaint.
The trial court denied the motion.
April 2014, Dr. Maggard filed a Second Amended Complaint and
on May 29, 2014, Dr. Kinney filed a motion to dismiss that
Complaint asserting "the protections of the judicial
statements privilege for absolute immunity" against Dr.
Maggard's claims. On the same day, he filed a motion to
stay the proceedings pending final determination of the
applicability of immunity as a bar to Dr. Maggard's
claims. Dr. Kinney cited Prater, 292 S.W.3d at 883,
for the proposition that the denial of a claim of absolute
immunity entitles the claimant to an immediate appeal. He
alleged that his immunity under the judicial statements
privilege required all further proceedings to be stayed. The
trial court denied Dr. Kinney's motion to dismiss on June
25, 2014, and held the motion to stay in abeyance.
Kinney filed an interlocutory appeal in the Court of Appeals
on July 11, 2014, arguing that he was immune from Dr.
Maggard's claims. Shortly thereafter, he filed a motion
for intermediate relief pursuant to Kentucky Rule of Civil
Procedure (CR) 76.33. On October 17, 2014, the Court of
Appeals granted the motion, in part, holding that Dr. Kinney
was entitled to a stay of the proceedings on the claims
involving his statements to the KBML until his claim of
absolute immunity was finally adjudicated. The appellate
court noted, however, that any immunity would not extend to
the claims based on statements made to co-workers and
patients outside the KBML proceedings.
opinion on the interlocutory appeal,  a divided Court of
Appeals' panel found that Dr. Kinney was immune from
some, but not all, of Dr. Maggard's claims. Equating the
judicial statements privilege with absolute immunity, the
panel first found appellate interlocutory jurisdiction proper
pursuant to Prater. Substantively, the Court of
Appeals determined that the judicial statements privilege
immunized Dr. Kinney from the libel and slander claim based
on his deposition and trial testimony during the federal case
brought by Harless. As to libel and slander stemming from the
KBML proceedings, the appellate court agreed with Dr. Kinney
that applying the judicial statements privilege to the KBML
proceedings would be a logical extension of this Court's
holding in Botts that statements made to the KBA
during attorney discipline proceedings are absolutely
privileged. 348 S.W.3d at 605. Based on this extension of
Botts, the Court of Appeals determined that Dr.
Maggard's claim alleging Dr. Kinney violated KRS 311.590
by filing false or fraudulent information with the KBML must
also be dismissed.
the counts based on Dr. Kinney's false statements to Dr.
Maggard's co-workers, colleagues and patients, as well as
to HRMC administrators and the KBML and the wrongful use of
civil proceedings at the KBML, the Court of Appeals remanded
to the trial court. To the extent that any defamatory
statements were made to the KBML throughout the grievance
process, those statements would be privileged, but
disparaging statements made to others outside the
disciplinary process were not privileged.
as to the claim that Dr. Kinney committed abuse of process by
reporting, and causing others to report, Dr. Maggard to the
KBML for a purpose unintended by the disciplinary process,
the Court of Appeals concluded that since Botts was
applicable to the KBML proceedings (under their opinion), the
judicial statements privilege also applied to preclude an
abuse of process claim stemming from the KBML disciplinary
process. However, Dr. Maggard could maintain an abuse of
process claim to the extent it was based on Dr. Kinney's
efforts to recruit others to file grievances.
dissent, Judge Thompson opined that Dr. Maggard should have
been permitted to maintain an abuse of process claim based on
Dr. Kinney's KBML grievance in accordance with the Court
of Appeals' holding in Halle v. Banner Industries of
N.E., Inc.,453 S.W.3d 179 (Ky. App. 2014). In
Halle, the Court of Appeals held that the judicial
statements privilege applied only to a defendant's
statements during legal proceedings, not to a defendant's
motives for initiating legal proceedings, and therefore, it