Bergh v. Sanford Health Network

Background

Craig J. Bergh, a certified registered nurse anesthetist, provided anesthesia services to Sanford Health under a contract for locum tenens services. On August 15, 2022, before a sedated female patient underwent prone surgery, Bergh examined the patient’s breasts while preparing her positioning. Bergh alleged that this examination was standard practice because the patient had breast implants and the proper adult chest rolls were unavailable.

Operating-room personnel perceived the examination as “tawdry” and done for an improper or lascivious purpose. Sara Zoelle, Sanford Health’s Chief Medical Officer, reviewed the incident, told Bergh that he had committed a felony sexual assault of a vulnerable adult, and said the matter would be reported to law enforcement and the Minnesota Board of Nursing. Sanford Health later terminated Bergh’s contract, reported the incident to the Nobles County Attorney’s Office and the Board of Nursing, and reportedly told prospective employers that Bergh had been terminated for “unprofessional conduct.” Criminal charges were later dismissed, and the Board of Nursing decided that discipline was not warranted.

Bergh asserted claims under Minnesota law for defamation, tortious interference with prospective economic advantage, and malicious prosecution. Sanford Health moved to dismiss the Second Amended Complaint for failure to state a claim. Bergh moved to strike Sanford Health’s memorandum supporting that motion.

Motion to Dismiss

The court applied Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint alleges enough facts to state a plausible claim for relief. The court treated the complaint’s factual allegations as true for purposes of the motion but did not accept legal conclusions or unsupported labels as facts.

Defamation

The court dismissed the defamation claim for several independent reasons. The reports to Nobles County and the Minnesota Board of Nursing were pleaded with enough specificity to identify the general statements, the reporting person, and the recipients. The allegations about statements to prospective employers were not specific enough because they did not identify any prospective employers or healthcare providers who received the statements.

The court also held that the alleged statements did not include actionable false statements. Statements that the breast examination occurred merely reported an event Bergh did not deny. Descriptions that his conduct was “tawdry,” improper, lascivious, or unprofessional were opinions that could not be proven true or false. The court further held that the report to Nobles County was protected by statutory immunity for good-faith reports of suspected maltreatment of a vulnerable adult, and that the report to the Board of Nursing was similarly protected. Statements to prospective employers were protected by qualified privilege, which can protect statements made for a proper purpose on reasonable grounds unless the plaintiff proves actual malice. The court found that Bergh had not adequately alleged a lack of good faith or actual malice.

Tortious Interference with Prospective Advantage

The court held that Bergh did not identify a specific third party with whom he had a reasonable probability of a future economic relationship. General references to unidentified healthcare institutions, clinics, or hospitals were insufficient. The court also found that the complaint did not adequately allege that Sanford Health intentionally engaged in independently wrongful conduct, rather than conduct that was merely unfair. Finally, the complaint did not identify actual damages tied to particular lost prospective employment relationships, making the alleged damages speculative.

Malicious Prosecution

The court held that a private entity may be liable for malicious prosecution if it pressured a prosecutor to initiate criminal proceedings or lied to the prosecutor and the lies resulted in charges. The complaint did not allege that Sanford Health pressured Nobles County, and it did not identify any demonstrably false, non-opinion statements made to the county. The court also found that Sanford Health had probable cause, or at least a reasonable basis, to report suspected maltreatment after personnel witnessed the examination and Sanford investigated the incident. Bergh’s allegation that the report was “malicious” was conclusory and unsupported by facts showing intentional lies or an effort to target him.

Motion to Strike

The court denied Bergh’s motion to strike. Federal Rule of Civil Procedure 12(f) permits striking certain material from a pleading, but the court held that the rule did not apply to a memorandum supporting a motion to dismiss. The court also found that the memorandum discussed facts supplied by the Second Amended Complaint and did not contain the type of scandalous or unsupported material that could warrant striking it. The court additionally noted that Bergh had not complied with the local meet-and-confer requirement.

Disposition

Judge John R. Tunheim granted Defendants’ Motion to Dismiss. The court dismissed the Second Amended Complaint with prejudice for failure to state a claim and denied Plaintiff’s Motion to Strike. The court directed that judgment be entered accordingly.