Bergh v. Sanford Health Network

Background

Craig J. Bergh sued his former employer, Sanford Health, and Sara Zoelle, identified in the opinion as a Sanford family-practice doctor and Chief Medical Officer. Bergh alleged that, during an August 15, 2022 surgery, he examined a patient’s breast placement to help safely position the patient face down. According to Bergh, a nurse misunderstood the examination and reported it as inappropriate sexual contact. Bergh alleged that hospital administrators, including Zoelle, held a same-day meeting, concluded that he had failed to obtain required consents, reported the matter to Nobles County law enforcement and the Minnesota Board of Nursing, and terminated him.

Bergh alleged that the Minnesota Board of Nursing found disciplinary action unwarranted and that Nobles County dropped the criminal charges. He claimed that the reports damaged his reputation, finances, employment prospects, and mental and emotional health. His operative complaint asserted defamation, tortious interference with prospective advantage, and malicious prosecution.

After defendants filed a motion to dismiss, Bergh moved to file a third amended complaint. The proposed complaint would remove references to a defendant no longer in the case, add factual allegations about the surgery and its aftermath, expand the existing claims, and add claims for compelled self-defamation and false-light portrayal. Defendants argued that the amendment was prejudicial, followed several earlier amendment opportunities, and would be futile because its claims could not survive dismissal for failure to state a claim.

Procedural objections

The court declined to deny the motion merely because Bergh had filed earlier pleadings, had previously been directed to clarify subject-matter jurisdiction, or had initially failed to file a required meet-and-confer statement. The court also found that the early stage of the case meant defendants would not suffer unfair prejudice from the proposed new claims or from having their pending motion to dismiss potentially affected by an amended pleading.

Futility standard

Under Federal Rule of Civil Procedure 15, courts generally should allow amendments when justice requires, but may deny leave for reasons including undue delay, bad faith, repeated failure to correct deficiencies, undue prejudice, or futility. An amendment is futile if it could not survive a motion to dismiss under Rule 12(b)(6). Applying that standard, the court treated the proposed factual allegations as true and viewed them in the light most favorable to Bergh.

Defamation

The court held that the proposed defamation amendments were futile. It assumed, without deciding, that defendants’ statements could constitute defamation, but concluded that the statements were protected by statutory and qualified immunity. The court explained that Minnesota law requires certain reports of suspected maltreatment of vulnerable adults and provides immunity for good-faith reports to the Minnesota Board of Nursing. It also explained that professional references may be protected when made for a proper purpose, with a proper motive, and based on reasonable cause.

The court said Bergh could overcome those protections only by adequately alleging bad faith or malice. It concluded that his allegations focused on defendants’ failure to conduct a more thorough investigation but did not plausibly show that defendants acted from ill will, improper motives, or a desire to injure him. The court also found that the alleged statements did not appear exaggerated or made in a way suggesting that defendants’ purpose was to harm Bergh rather than report suspected maltreatment. The proposed defamation amendments were therefore futile.

Tortious interference with prospective economic advantage

The court held that the proposed amendments to this claim were also futile. Bergh relied on the alleged defamation as the independently wrongful conduct supporting his claim that defendants interfered with his future employment. Because the court found that the proposed defamation claim was inadequately pleaded, Bergh had not adequately alleged the wrongful conduct required for tortious interference. The court added that no other tort in the proposed complaint was adequately alleged either.

Malicious prosecution

The court held that the proposed malicious prosecution amendments were futile because Bergh had not plausibly alleged that defendants lacked probable cause when they reported the matter to Nobles County. Probable cause requires a reasonable basis for suspecting that the accused committed the charged offense. The court found that Bergh’s own allegations indicated that the nurse reported what she believed to be true and that defendants reported the nurse’s account while complying with Minnesota’s requirement of immediate reporting when maltreatment is suspected.

Although Bergh alleged that defendants should have consulted anesthetists with additional expertise before making the reports, the court concluded that the alleged investigation was not so inadequate as to show an absence of probable cause. Because the probable-cause element failed, the court did not address the other elements of malicious prosecution.

Self-defamation

The court held that the proposed self-defamation claim was futile because it depended on a viable underlying defamation claim. Bergh alleged that defendants’ work references forced him to repeat the allegedly defamatory information to prospective employers. The court concluded, however, that the proposed complaint did not adequately plead that defendants’ professional references were unprivileged or made with bad faith or malice. Allowing liability for self-defamation after finding no viable underlying defamation claim would improperly expand the scope of defamation liability.

False light and choice of law

The court held that the proposed false-light claim was futile. Minnesota does not recognize false-light publicity as a tort, while South Dakota does. The court applied Minnesota’s choice-of-law rules because the case was in federal court based on diversity jurisdiction. It found an actual conflict between Minnesota and South Dakota law and concluded that both states had sufficient contacts with the dispute for their laws to apply constitutionally.

After considering Minnesota’s choice-influencing factors, the court concluded that Minnesota law should govern. The incident occurred in Minnesota, involved a patient and a nurse anesthetist licensed in Minnesota, and led to reports to Minnesota authorities. The alleged injury was also largely connected to Minnesota. Because Minnesota does not recognize false-light publicity, the court found the proposed claim futile.

Disposition

The court denied Craig J. Bergh’s Motion to Amend the Pleadings because the proposed amendments were futile. It directed the clerk to correct the docketed defendant name from “Sanford Health Network” to “Sanford Health.” The opinion does not rule on defendants’ separate pending motion to dismiss the operative complaint.

Judge and naming note

The opinion is signed by Douglas L. Micko, United States Magistrate Judge. The supplied case information lists John Tunheim as the judge, but the signed opinion identifies Micko as the judge who issued this order.