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Maggard v. Kinney

Supreme Court of Kentucky

June 13, 2019



          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.




         Ten 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.

         Today, 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.


         Beginning 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.

         Dr. 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.[1] 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 attorney.

         Dr. 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.

         While 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.

         In 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.

         On 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[2] 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.

         Dr. 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.

         In 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.

         Dr. 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.

         In its opinion on the interlocutory appeal, [3] 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.

         As to 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.

         Finally, 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.

         In his 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 ...

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