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Brodkin v. Novant Health, Inc.

Court of Appeals of North Carolina

February 19, 2019


          Heard in the Court of Appeals 14 November 2018.

          Appeal by plaintiff from orders entered 30 June 2017 by Judge John O. Craig and 1 February 2018 by Judge Anderson D. Cromer in Forsyth County No. 15 CVS 2690 Superior Court.

          David B. Hough, P.A., by David B. Hough, for plaintiff-appellant.

          Nelson Mullins Riley & Scarborough LLP, by G. Gray Wilson and Linda L. Helms, for defendant-appellee Volker Stieber.

          Constangy, Brooks, Smith & Prophete, LLP, by Kristine M. Sims and William J. McMahon, IV, for defendants-appellees.

          DIETZ, JUDGE.

         Dr. Richard Alan Brodkin was an oncologist treating cancer patients at Forsyth Memorial Hospital[1] in Winston-Salem. In 2014, other oncologists at the hospital became concerned about Dr. Brodkin's use of a treatment known as "induction chemotherapy." Ultimately, following disagreements in a collaborative meeting intended to ensure best practices, one of the other oncologists took his concerns to the head of the department. This resulted in a series of discussions, investigations, and reports that led the hospital to present Dr. Brodkin with an ultimatum: sign a letter agreeing to limit some treatment practices, or be fired.

         When Dr. Brodkin refused to sign the letter, the hospital terminated his employment. Dr. Brodkin then filed this lawsuit, which included claims for breach of contract, wrongful discharge, tortious interference, fraud, and defamation. The trial court granted summary judgment in favor of the Defendants on all claims, and this appeal followed.

         As explained below, the bulk of Dr. Brodkin's claims fail because his employment contract was terminable without cause and the hospital's decision to terminate the contract was neither a breach of contract nor a violation of our State's public policy. The fraud claim fails because there is no evidence of fraud in this record. The defamation claim fails because the challenged statements are protected by qualified privilege. Thus, because the trial court properly concluded that the defendants were entitled to judgment as a matter of law on all claims, we affirm the court's order.

         Facts and Procedural History

         In 2010, Forsyth Memorial Hospital purchased Dr. Richard Alan Brodkin's oncology practice. As part of the purchase, Dr. Brodkin became an employee of the hospital. When he began employment, he signed a contract entitled "Physician Employment Agreement." The contract contained various terms of the parties' employment relationship. The contract was terminable without cause by either party and had no definite term.

         As part of his employment duties as an oncologist, Dr. Brodkin attended collaborative meetings with other hospital physicians who treat cancer patients. Together, these physicians would review patients' case files to ensure that the hospital's patients were receiving the best treatment possible. The meetings were referred to as "Tumor Board" meetings.

         This case arose out of a disagreement among physicians attending these Tumor Board meetings. Some of Dr. Brodkin's fellow oncologists, including Dr. Volker Stieber, were concerned that Dr. Brodkin's use of a treatment known as "induction chemotherapy" was inconsistent with National Comprehensive Cancer Network guidelines-a set of guidelines that reflected recommended treatment approaches from experts around the country-and that these induction chemotherapy treatments were not the appropriate course of treatment for Dr. Brodkin's patients.

         Ultimately, Dr. Stieber complained to Dr. Susan Hines, the head of medical oncologists at the hospital. Dr. Hines asked Dr. Stieber to provide a list of patients who were impacted, and a description of Dr. Stieber's concerns with those patients' treatment. In response, Dr. Stieber prepared an email that summarized Dr. Brodkin's care of ten patients and explained why Dr. Stieber and some of his colleagues disagreed with those treatment decisions. Dr. Stieber's email did not reference Dr. Brodkin by name but it described the induction chemotherapy treatments provided to ten of Dr. Brodkin's patients and explained that Dr. Stieber and his "group" of physicians had concerns about whether this was the appropriate course of treatment. Dr. Stieber sent the email directly to Dr. Hines, copying Dr. Dawn Moose, but the record indicates that the email eventually circulated to other employees of the hospital.

         In November 2014, Dr. Timothy Collins, the hospital's oncology service line lead, and Dr. Thomas Grote, the hospital's oncology practice lead, met with Dr. Brodkin to discuss Dr. Stieber's email. According to Dr. Brodkin, he was unaware of Dr. Stieber's email until this November meeting. Dr. Collins gave Dr. Brodkin one week to respond to the issues identified in Dr. Stieber's email and told him that Dr. Grote would later evaluate the situation and make a recommendation. Dr. Brodkin spent days reviewing his patients' records and preparing a response, which he then submitted to Dr. Grote.

         Later, at the request of Dr. Collins and other supervisory staff at the hospital, Dr. Grote began a further review of Dr. Brodkin's patient care by forming a committee that consisted of oncologists from various specializations. The committee prepared a report with a ...

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