999 F.3d 589
8th Cir.2021Background
- Dr. Gregory Sherr, a neurosurgeon, obtained clinical privileges at HealthEast in 2015; existing in‑house “Neuro Group” doctors (Wallenfriedman, Dunn, Gregory, Kolar) had competing referral relationships and compensation tied to procedures.
- HealthEast’s Spine Council generated Spine Quality Reports, handled peer review under a Practitioner Peer Review Policy, and could refer matters to the Medical Executive Committee (MEC) for corrective action, including summary suspension.
- Multiple safety reports, infection‑control emails, and the Spine Quality Report identified elevated post‑op infection concerns involving several of Sherr’s cases; the Spine Council opened peer review and reviewed eight cases in October 2015.
- At an October 6 peer‑review meeting Neuro Group members made alleged defamatory statements about Sherr; after a follow‑up meeting on October 20, HealthEast’s CMO (Kolar) imposed a summary suspension, which the MEC upheld and reported to the National Practitioner Data Bank; a Judicial Review Committee later overturned the suspension.
- Sherr sued for defamation, tortious interference with prospective economic advantage, and tortious interference with contract; the district court granted summary judgment to defendants principally on peer‑review immunity and evidentiary grounds; the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements made during peer review are actionable (defamation) | Sherr: peer‑review immunity does not apply because reviewers acted with malice and violated procedures (conflict of interest, procedural defects) | Appellees: Minnesota and federal peer‑review immunity protect peer‑review communications unless malice or procedural violations are shown | Held: Immunity applies; record shows reviewers followed policy; no objective proof of malice; defamation claim dismissed |
| Whether plaintiff may rely on 18 discovered statements not pleaded in amended complaint | Sherr: may rely on statements identified in discovery even if not amended into complaint | Appellees: defamation must be pleaded with specificity; unpleaded statements are outside claim scope | Held: Only three statements were properly pleaded; other statements excluded |
| Whether hearsay and unverified reports can defeat summary judgment | Sherr: relied on staff reports and third‑party statements about reputation and referrals | Appellees: such hearsay is inadmissible at summary judgment and cannot create genuine issues | Held: Hearsay inadmissible; several claims fail for lack of admissible evidence |
| Tortious interference (prospective advantage and contract) | Sherr: suspension and publicity destroyed referrals (Allina, MSBI partnership track) | Appellees: peer‑review immunity and lack of independent tortious act, inadequate causation, no breach of contract proven | Held: Summary judgment for defendants—no independent wrongful act shown; no admissible evidence of causation or contract breach |
Key Cases Cited
- In re Peer Review Action, 749 N.W.2d 822 (Minn. Ct. App. 2008) (peer‑review immunity scope and malice standard)
- Campbell v. St. Mary’s Hosp., 252 N.W.2d 581 (Minn. 1977) (purpose of peer‑review immunity to encourage self‑policing)
- Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210 (Minn. 2014) (elements for tortious interference with prospective economic advantage)
- Sysdyne Corp. v. Rousslang, 860 N.W.2d 347 (Minn. 2015) (elements for tortious interference with contract)
- Walker v. Wanner Eng’g, Inc., 867 F. Supp. 2d 1050 (D. Minn. 2012) (pleading specificity in defamation suits and when location may be inferred)
- Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307 (8th Cir. 1993) (inadmissible hearsay cannot defeat summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard and genuine issue requirement)
- McKee v. Laurion, 825 N.W.2d 725 (Minn. 2013) (defamatory statements versus opinion)