Opinion
No. 89-05805.
Decided May 29, 1990.
Louis C. Damiani and Elliott S. Barrat, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and William J. McDonald, Assistant Attorney General, for defendant.
This matter came on for trial on April 3, 1990, with counsel for the parties present. All evidence has been thoroughly scrutinized and evaluated. Briefs of counsel have also been fully considered in the formation of this court's judgment.
Plaintiff, Lakeland Anesthesia Group, Inc. ("Lakeland"), is an Ohio professional corporation located in northern Ohio. It is a medical provider whose employees are comprised of Certified Registered Nurse Anesthetists ("CRNA"), operating pursuant to R.C. 4731.35. Lakeland's CRNA employees performed anesthesia services in various offices, many of which were run by licensed podiatrists.
During 1986, a dispute arose between Lakeland and a third party, Community Mutual Insurance Company ("CMIC"), a private insurance company. The dispute pertained to the payment of medical claims submitted by Lakeland to CMIC for the in-office administration of anesthesia and related services performed for licensed podiatrists.
On December 5, 1986, CMIC wrote to defendant, the State Medical Board ("medical board"), inquiring whether a CRNA could, consistent with the scope of practice of a CRNA and a podiatrist, administer anesthetics in a podiatrist's office under the supervision of the podiatrist. On February 16, 1987, counsel for Lakeland drafted a letter addressed to the medical board in direct response to CMIC's December 5, 1986 letter. Within this letter, counsel requested a clarification regarding the in-office administration of anesthetics by a CRNA under the direction and in the presence of a licensed podiatrist.
On March 17, 1987, Ray Q. Bumgarner, Executive Director of the medical board, responded to CMIC's December 5, 1986 letter. However, no representative of the medical board responded to Lakeland's February 16, 1987 letter. The medical board's response to CMIC's inquiry stated in part:
"* * * if you are inquiring about `in-office' use of general anesthesia, a podiatrist does not have authority to either direct its administration by CRNA, or to assume the role of the physician whose presence is required by Section 4731.35, Revised Code."
On May 21, 1987, counsel for Lakeland wrote to Ray Q. Bumgarner of the medical board. The medical board did not respond to this letter. On February 11, 1988, counsel for Lakeland again wrote to Bumgarner requesting a retraction of the medical board's March 17, 1987 letter. On February 23, 1988, Ray Q. Bumgarner wrote to Lakeland's counsel denying Lakeland's request for retraction. On August 11, 1988, the medical board again responded to Lakeland's counsel by a letter signed by its secretary and member, Henry G. Cramblett. The letter ratified the action of Ray Q. Bumgarner in issuing the letter of March 17, 1987, and affirmed his conclusion.
Plaintiff argues in the instant action that CMIC used the medical board as a pawn by requesting the medical board to render legal and/or advisory opinions which have been disseminated to companies and medical professionals resulting in nonpayment of numerous insurance claims, loss of business, and damage to plaintiff's business and reputation in the medical community. Plaintiff alleges that as a direct and proximate result of defendant's March 17, 1987 legal and/or advisory opinion, CMIC has continued its policy of denying Lakeland's claims for anesthesia services and supplies provided to patients in podiatrists' offices. Thus, Lakeland alleges that the medical board, without privilege, committed an intentional tort which directly and proximately caused Lakeland to suffer substantial economic loss and injury to its business and reputation in the medical community.
There was no substantial dispute that the medical board answered an inquiry from CMIC concerning whether a CRNA could administer anesthesia under the supervision of a podiatrist. Nor was there a dispute that the medical board's handling of Lakeland's attempted correspondence from February 16, 1987 to February 23, 1988 was bungled, and, to say the least, unfortunate. However, this oversight is in no way a foundation upon which liability can be built. In the present case, there is no basis upon which this court can find the medical board liable. The evidence submitted at trial consistently supports the medical board's position that it was not liable for intentional interference with Lakeland's business relationships.
The tort of "business interference" occurs when a person, without privilege, induces or otherwise purposely causes a third-party not to enter into, or continue, a business relationship, or perform a contract with another. Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51, 9 O.O.3d 216, 379 N.E.2d 235. Factors which must be considered in determining if a party has a privilege to engage in conduct which might amount to business interference include:
(a) The nature of the actor's conduct;
(b) the nature of the expectancy with which the conduct interferes;
(c) the relation between the parties;
(d) the interest sought to be advanced by the actor; and
(e) the social interests in protecting the expectancy on the one hand and the actor's freedom of action on the other hand. Id. at paragraph three of syllabus. See, also, 88 Ohio Jurisprudence 3d (1987) 318-319, Torts, Section 16.
The alleged misconduct in question is simply the medical board's response to an inquiry from CMIC. This response is clearly not within the realm of business interference. The response to CMIC is absolutely privileged, and thus lawful. It is the nature of the medical board to respond to any inquiry before it. As correctly stated by counsel for the medical board, public officials must take action and render opinions which might prove to be injurious to the private interests of certain citizens. No government agency needs to express statutory authority in order to inform any member of the public of its position on matters within its jurisdiction. See Waliga v. Bd. of Trustees of Kent State Univ. (1986), 22 Ohio St.3d 55, 22 OBR 74, 488 N.E.2d 850. Such is the nature of government. Officials must not allow themselves to be intimidated into withholding opinions on matters affecting the public welfare by the threat of lawsuits for damages by those persons adversely affected.
Furthermore, Lakeland has failed to prove by a preponderance of the evidence that CMIC would not have discounted its business relationship with the medical board in the absence of the alleged intentional inducement by the medical board. There was already a dispute between Lakeland and CMIC. The court is of the opinion that the medical board's opinion letters of March 17, 1987 and August 11, 1988 were not rendered with the intent to cause injury to Lakeland nor has Lakeland proven by a preponderance of the evidence that the medical board intentionally induced CMIC to discontinue its business relationship with Lakeland.
For all the above reasons and based upon all the evidence submitted, judgment is hereby rendered for the defendant.
Judgment for defendant.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.