Breach of Contract Cases

William Vranos vs. Michael D. Skinner & others. No. 08-P-2006. Franklin. November 5, 2009. July 19, 2010. Present: McHugh, Vuono, & Meade, JJ. Practice, Civil, Motion to dismiss, Complaint. Contract, Performance and breach, Employment, Implied covenant of good faith and fair dealing, Interference with contractual relations. Doctor, Employment. Hospital, Peer review. Civil Rights, Coercion. Libel and Slander. In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claims of breach of contract and breach of the implied covenant of good faith and fair dealing, which were based on a theory that the hospital’s bylaws and staff policy created a contract between the hospital and the plaintiff, where the plaintiff failed to comply with the provisions in the bylaws containing extensive review processes; where the plaintiff could not demonstrate that a course of conduct, oral representations, or other aspects of the plaintiff’s tenure at the hospital somehow eroded the review process provisions; and where the plaintiff could not demonstrate that the provisions were facially invalid or that he was excused from complying with them. [287-290] In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claim alleging a violation of G. L. c. 12, § 111, the Massachusetts Civil Rights Act, where the defendants’ actions effected neither a surrender of the plaintiff’s right to work nor his right to express opinions [290]; further, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claim of interference with contractual and advantageous relations, where the plaintiff’s allegations that the defendants’ activities “jeopardized” the plaintiff’s existing or anticipated relationships were not sufficient to state a claim [290-291]. In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge did not err in granting summary judgment in favor of the defendants (the hospital, its president, and its director of surgical services) on the plaintiff’s defamation claims, where, to the extent the claims were based on the content of the summary suspension letter issued by the president, such a document constituted a peer review document and, by virtue of G. L. c. Ill, §§ 204(a) and 205(6), was inadmissible in any judicial proceeding and thus could not serve as a basis for a viable defamation claim [293-295]; further, the fact of the plaintiff’s suspension, by itself, could not serve as the basis for a defamation claim, where the suspension was the result of the peer review process, which is statutorily immunized from judicial review [295-296]; finally, allegedly defamatory statements that the president made to hospital staff, when considered in context, added nothing to whatever defamatory sting flowed from the suspension itself [296-297], Civil action commenced in the Superior Court Department on March 3, 2005. Following review by the Supreme Judicial Court, 448 Mass. 425 (2007), the case was heard by Constance M. Sweeney, J., on a motion for summary judgment. Thomas T. Merrigan (Peter M. Merrigan with him) for the plaintiff. Francis D. Dibble, Jr., for the defendants. Kenneth Gaspard and Franklin Medical Center. McHugh, J. After his staff privileges at Franklin Medical Center (FMC) were summarily suspended, Dr. William Vranos, an orthopedic surgeon, commenced this action against FMC, Michael D. Skinner, R.N., who is the FMC president, and Kenneth Gaspard, R.N., FMC’s director of surgical and material services. Vranos’s complaint contains six counts: defamation against Gaspard (Count I); defamation against Skinner and FMC (Count II); breach of contract by FMC (Count III); violation of the duty of good faith and fair dealing by FMC (Count IV); violation of G. L. c. 12, § 111, the Massachusetts Civil Rights Act, against Skinner and FMC (Count V); and interference with contractual and advantageous relations by Skinner (Count VI). Early in the case, a judge of the Superior Court allowed the defendants’ motion to dismiss all counts of the complaint save the two alleging defamation. Discovery followed and, among other things, produced a dispute regarding the application and impact of the peer review statute, G. L. c. 111, §§ 203-205. The Supreme Judicial Court resolved that dispute, see Vranos v. Franklin Med. Center, 448 Mass. 425 (2007), and discovery proceeded to a conclusion. The defendants then moved for summary judgment on the defamation counts. The same Superior Court judge allowed the motion, and the resulting judgment dismissed the entire case. Now Vranos appeals, seeking reinstatement of all counts except Count I, which asserted the defamation claim against Gaspard. We affirm, though for reasons that do not in all instances track those set out by the motion judge in her thoughtful memorandum of decision. Because the complaint provides a context for all of the claims at issue on this appeal, we begin our review by examining the allegations it contains and the four claims dismissed for facial insufficiency. Then, using a different standard, we turn to the defamation claim and to the additional facts supplied by the affidavits and other materials the parties filed in connection with the summary judgment proceedings. 1. The motion to dismiss (Counts III through VI). a. Facts. Our initial approach to the complaint’s allegations is a limited one. Counts III through VI were dismissed pursuant to Mass. R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a claim on which relief could be granted. Accordingly, in reviewing that dismissal, we are limited to facts alleged in the complaint itself and to the inferences reasonably drawn when those allegations are viewed in the light most favorable to the plaintiff. See, e.g., Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998); Karty v. Mid-America Energy, Inc., 74 Mass. App. Ct. 25, 26 (2009). Read with that standard in mind, the complaint reveals that Vranos, a board-certified orthopedic surgeon, had been on the FMC staff since July, 1996. From January, 2002, through November, 2004, he had been chief of the FMC department of surgery. Throughout that period, Vranos was also a partner in the Franklin Orthopedic Group, which is not affiliated with FMC. Both FMC and the Franklin Orthopedic Group are located in Greenfield. For several months before the summary suspension at the heart of this case, Skinner tried to recruit Vranos to leave the Franklin Orthopedic Group and establish a competing practice at FMC. In late August, 2004, Vranos declined and, instead, accepted a position at Brattleboro Memorial Hospital, across the Vermont State line less than twenty miles north of Greenfield. The new position was effective January 1, 2005, and Skinner was concerned that Vranos’s move would produce a loss of orthopedic surgical cases at FMC. Vranos’s year-end departure, however, was not the only event roiling the surgical services department at FMC in the fall of 2004. On October 19, forty-nine members of the department of surgery, including Vranos, signed a “Memorandum of Concern” relating to Gaspard and his assistant, Kim Cotter. The memorandum, copies of which were delivered to Skinner, Gaspard, and Cotter, focused on whether Gaspard and Cotter were fit to manage the FMC surgical department. The specific events that led to this lawsuit began on October 28, 2004, when Vranos attended a regular meeting of the FMC surgical services support committee. The other three attendees were Dr. Henry K. Godek, chief of anesthesia, Gaspard, and Cotter. At the meeting, a heated disagreement between Vranos and Gaspard over a surgical services policy quickly ensued. Gaspard insisted that Vranos sign the policy and, when Vranos refused, Gaspard threatened to cancel all of Vranos’s surgical cases for the day. The animated exchange lasted about five minutes, after which the meeting ended and Vranos returned to his medical responsibilities, performed surgeries, and interacted without incident with Gaspard and Cotter during the course of the day. At some point shortly after the meeting, Gaspard reported to Skinner, falsely the complaint alleges, that Vranos had physically threatened and verbally abused him during the meeting and that Vranos had previously engaged in disruptive behavior and unprofessional conduct. Cotter also informed Skinner that Vranos had offended her on several occasions, though the complaint does not allege that those reports were false. Late in the afternoon of October 29, 2004, Skinner delivered to Vranos a letter imposing a summary suspension on Vranos’s medical staff membership and clinical privileges at FMC. In material part, the letter stated: “The grounds for this summary suspension are an incident that occurred on October 28, 2004, in the context of a history of disruptive behavior and unprofessional conduct by you at FMC. On October 28, 2004, in a meeting of the Operating Room Management Committee, you used intimidating, abusive, and hostile language and exhibited threatening behavior, including picking up a stack of papers and slamming them down on the table, picking up a chair and slamming it down in the conference room, and placing yourself physically close to one or more individuals while speaking in a loud, angry, and confrontational manner. Your behavior and conduct during this incident and at FMC has been perceived to be intimidating, abusive, hostile, and physically threatening.[]” The letter also described the appellate rights available to Vranos under the FMC bylaws. Before issuing the letter, Skinner did not ask Vranos for his version of events, nor did he contact Godek to obtain his recollections and observations. The suspension, Vranos alleges, was issued in retaliation for his decision to move his practice to Vermont and his challenge of Gaspard and Cotter’s management style. Under an FMC bylaw provision, Vranos’s summary suspension was automatically and quickly presented to the FMC medical staff summary suspension review committee (review committee) on which Skinner served as one of four members. Ultimately, the committee recommended that the suspension be lifted on three conditions, one of which was that Vranos resign as FMC’s chief of surgery. That recommendation was promptly approved by the FMC board of trustees (trustees). Vranos alleges in his complaint that he was not “allowed to appear before and make a presentation to” the review committee or to the trustees. However, before issuing its decision, the review committee considered a written submission from Vranos, along with written submissions from Godek, other physicians who supported Vranos, and “documentation concerning prior incidents of disruptive behavior by [Vranos] at FMC.” All of the parties agree that the FMC medical staff bylaws (bylaws) and staff regulations apply, and, as the motion judge noted, these bylaws and regulations govern the summary suspension letter and the subsequent committee actions. Three segments of those documents are of particular importance to our review of the motion to dismiss. The first is appendix 3, part 2, § 2.1, of the bylaws. That section provides that a summary suspension may only be imposed “whenever the failure to take such action may result in an imminent danger to the life, health, or safety of an individual or otherwise whenever a practitioner’s acts or conduct require that immediate action be taken: “(a) To protect the life of any patient; “(b) To reduce the substantial likelihood of injury or damage to the health or safety of any patient, employee, or other person at the Medical Center; or “(c) For the continued effective operation of the Medical Center.” If those criteria are met, § 2.1 authorizes a number of FMC officials, including Skinner, to suspend summarily a physician’s medical staff membership or clinical privileges or both. Within three business days following a summary suspension, however, a review committee must convene to review the summary suspension and advise the trustees “to continue, modify, or terminate the terms of the summary suspension.” The review committee may also “recommend additional corrective action concerning the [physician], up to and including termination of the [physician’s] Medical Staff membership or all or any portion of the [physician’s] clinical privileges, or both.” Part 2 of the appendix is followed by additional parts dealing with such things as hearings after adverse action, procedures for the conduct of hearings, including the right to counsel, the right to call witnesses, the right to cross-examine adverse witnesses, and appellate review of adverse hearing results. The appendix ends with part 10, containing § 10.2, the second of the three provisions of particular importance. In material part, § 10.2 provides: “Whenever any adverse recommendation or [other] adverse action ... is recommended or taken, the practitioner shall be entitled only to the remedies afforded by this Appendix 3, Corrective Actions and Fair Hearings, and shall exhaust such remedies. By requesting a hearing or appellate review under this Appendix 3, the practitioner agrees that any final action of the Board of Trustees following such hearing or appellate review shall be final and binding on the practitioner.” It is undisputed that the action taken by the trustees was “adverse action” within the meaning of § 10.2. Finally, the third pertinent provision comes from FMC’s medical staff policy on disruptive behavior, which requires that reports of disruptive behavior be documented in writing and submitted to the FMC patient care assessment coordinator for review, investigation, and any necessary corrective action. The affected staff member must be given notice of the report and an opportunity to respond, though the policy also states that it is not intended to preempt or interfere with other corrective action and disciplinary action described in the bylaws. The policy defines “disruptive behavior” broadly to include “[b]ehavior or conduct, whether verbal or physical, that has, or potentially may have, an adverse effect on the delivery of quality patient care, or that disrupts, or has the potential to disrupt, FMC or Medical Staff operations.” b. Discussion. In assessing the adequacy of a complaint, we read the complaint’s allegations generously and in the plaintiff’s favor. To withstand dismissal, the complaint’s factual allegations, so read, “must be enough to raise a right to relief above the speculative level.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We therefore look to see whether there are in the complaint “ ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief, in order to ‘reflect[] the threshold requirement of [Mass.R.Civ.P.] 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” ’ ” Ibid., quoting from Bell Atl. Corp. v. Twombly, supra at 557. (i) Counts III & IV — breach of contract & breach of the covenant of good faith and fair dealing. The complaint alleges that the FMC bylaws and staff policy on disruptive behavior constitute a contract between FMC and Vranos. The complaint also alleges that the suspension and actions surrounding its issuance and removal breached the contract and one of its implied terms. The complaint does not allege, however, that Vranos availed himself of the extensive review processes the bylaws contain. Unless compliance with those processes is somehow excused, that is an insurmountable problem, for our cases have established that “[w]here employment rights are contractual, and the contract establishes an internal grievance procedure for resolving disputes, the procedure ought to be followed.” Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 275 (2003) (tenure selection). Accord O’Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 696 (1996). Although the contractual relationship between Vranos and FMC was not, strictly speaking, an “employment” relationship, the relationship governed Vranos’s ability to perform surgery and otherwise treat patients at FMC, and it provided the basis for oversight, peer and other, of his interaction with patients. The peer review process, which formed an important part of that relationship, was driven by public policy and patient care considerations embodied in statutory mandates. See, e.g., G. L. c. 111, § 203. See generally Carr v. Howard, 426 Mass. 514, 518 (1998); Mass. G. Evid. § 513 (2010). Consequently, the importance of complying with the contractual review processes is no less compelling in this case than it is when the contract covers the ordinary employer-employee relationship. See generally Katz v. Children’s Hosp. Corp., 33 Mass. App. Ct. 574 (1992). Indeed, because the review processes may have an impact on patient care even if patient care was not immediately affected by the conduct under review, compliance with the internal review processes is even more important than it is in the typical employer-employee relationship. Vranos’s arguments to the contrary are unpersuasive. His claim that “[t]he allegations [of the complaint] are sufficient to permit proof of an oral contract or a contract implied infact, and the evidence may show that the by-laws’ limitations on the employees’ privileges were not controlling,” Hobson v. McLean Hasp. Corp., 402 Mass. 413, 416 (1988), is simply not borne out by the contents of the complaint even when read with the requisite indulgence. The complaint does not allege, nor does it plausibly point to, a course of conduct, oral representations, or other aspects of Vranos’s tenure at FMC that somehow implicitly eroded the extensive and carefully constructed bylaws and other provisions he seeks to avoid, provisions driven by patient care concerns governing statutes embrace. Next, Vranos’s argument that the finality provisions of appendix 3, § 10.2, unfairly deprive him of all access to judicial review amounts to a facial attack on the elaborate hearing and appeal provisions appendix 3 contains. Like most such attacks, see, e.g., O’Brien’s Case, 424 Mass. 16, 23-24 (1996); Commonwealth v. Blair, 60 Mass. App. Ct. 741, 749 n.15 (2004), Vranos’s challenge necessarily and inappropriately assumes that the process will inevitably produce an unfair result. Neither a particular component of the review provisions nor the provisions as a whole describe a deck so stacked that unfairness is the likely outcome. On the contrary, the review process includes the right to counsel, the right to confront witnesses, the right to discovery, and other procedural devices that lie at the very heart of the judicial system. While the “Office of the [FMC] CEO” appoints the hearing panel, it must do so “after considering any recommendations of the President of the Medical Staff or of the Chair of the Board of Trustees,” it must appoint an “impartial Hearing Officer,” and any results the process produces must be approved by the trustees before they become effective. Beyond that, similar “finality” provisions are common ingredients of other nonjudicial mechanisms for grievance resolution, and those provisions have not eliminated the ability to obtain some judicial review of resulting decisions. See, e.g., Acmat Corp. v. Daniel O’Connell’s Sons, Inc., 17 Mass. App. Ct. 44, 49 (1983); Katz. v. Children’s Hosp. Corp., 33 Mass. App. Ct. at 575. There is no reason to assume that an appropriate level of review would be unavailable here. Finally, Vranos claims that he was excused from following the grievance procedures bec

ALOHA E. BRYSON, M.D., Ph.D., Plaintiff v. HAYWOOD REGIONAL MEDICAL CENTER, PRIMEDOC MANAGEMENT SERVICES, INC. and PRIMEDOC OF HAYWOOD COUNTY, P.A., Defendants No. COA09-270 (Filed 15 June 2010) 1. Appeal and Error— interlocutory order and appeal — statutory privilege asserted — medical review committee records An appeal was properly before the Court of Appeals even though it was interlocutory where it involved an assertion of statutory privilege in medical review committee records. 2. Discovery— medical review committee records — privilege not established The trial court did not err by entering an order compelling discovery of certain documents in an employment action involving a hospital where defendant contended that the documents had been produced by a medical review committee and were protected from discovery under N.C.G.S. § 131E-95(b). The documents did not appear to be privileged on their face, and defendant submitted no affidavits or other evidence to support its claim. Appeal by defendant Haywood Regional Medical Center from order entered 19 December 2008 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 16 September 2009. Elliot Pishko Morgan, P.A., by Robert M. Elliot, for plaintiffappellee. Van Winkle, Buck, Wall, Starnes & Davis P.A., by Allan R. Tarleton, for defendant-appellant Haywood Regional Medical Center. GEER, Judge. Defendant Haywood Regional Medical Center (“HRMC”) appeals from the trial court’s order granting in part plaintiff Dr. Aloha E. Bryson’s motion to compel discovery of certain documents. On appeal, HRMC contends the trial court erred in concluding that the documents were not privileged under N.C. Gen. Stat. § 131E-95(b) (2009) and in ordering HRMC to produce and disclose those documents to plaintiff. Because HRMC has failed to meet its burden of showing that the documents fall into one of the three categories of privileged material under N.C. Gen. Stat. § 131E-95(b), we affirm. Facts On 26 February 2008, plaintiff filed a complaint in Haywood County Superior Court against HRMC, as well as Primedoc Management Services, Inc. and Primedoc of Haywood County, P.A. (“the Primedoc defendants”). Plaintiff, an internist hired by the Primedoc defendants to work at HRMC from March 2005 to December 2007, alleged that, during her time at HRMC, she became concerned about patient safety issues in the Intensive Care Unit (“ICU”) and Definitive Observation Care Unit (“DOCU”). Plaintiff alleged that she observed numerous nursing errors in the ICU and DOCU, including (1) mistakes in the dosing and administration of patient medication; (2) failure to accurately and completely follow doctors’ orders; and (3) instances of nurses, while on duty, text messaging, using cell phones for personal calls, sleeping, and shopping online. Plaintiff documented these patient safety issues by filing occurrence reports with HRMC’s risk manager in accordance with hospital policy. According to plaintiff, HRMC officials began pressuring her to cease filing occurrence reports. Plaintiff alleged HRMC gave false information to the Primedoc defendants about her work and directed that her employment be terminated in retaliation for her complaints about patient care. Plaintiff asserted claims for wrongful interference with contract and defamation against HRMC. Plaintiff also asserted claims for breach of contract, breach of the covenant of good faith and fair dealing, and constructive discharge against the Primedoc defendants. Plaintiff also brought claims for civil conspiracy, punitive damages, and unfair and deceptive trade practices against all defendants. On 29 February 2008, plaintiff served HRMC with her first set of interrogatories and her first set of requests for production of documents. In its responses, HRMC refused to respond to several of plaintiff’s requests, contending that they sought disclosure of the proceedings, records, and materials produced or considered by a medical review committee, which constituted information protected from discovery under N.C. Gen. Stat. § 131E-95(b). On 16 September 2008, plaintiff filed a motion to compel discovery. Although HRMC filed a written response to the motion to compel, it did not submit any affidavits or other evidence supporting its claims of privilege. In an order entered 24 October 2008, the trial court directed HRMC to respond to most of plaintiff’s discovery requests. With respect, however, to certain interrogatories and requests for production, the trial court ordered HRMC to submit the documents and information for its in camera review. After conducting the in camera review, the trial court entered an order on 19 December 2008 granting an order protecting some of the documents and ordering others to be produced. HRMC timely appealed to this Court. Discussion The trial court’s order granting in part plaintiff’s motion to compel discovery is an interlocutory order. “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). N.C. Gen. Stat. § 7A-27(d)(l) (2009), however, authorizes an appeal from an interlocutory order that affects a substantial right. “[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under sections l-277(a) and 7A-27(d)(1).” Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. This appeal is, therefore, properly before us. See Armstrong v. Barnes, 171 N.C. App. 287, 290-91, 614 S.E.2d 371, 374 (holding challenged discovery order affected substantial right because “assertions of statutory privilege relate directly to the matters to be disclosed under the trial court’s interlocutory discovery order”), disc. review denied, 360 N.C. 60, 621 S.E.2d 173 (2005). The sole issue on appeal is whether the trial court erred in compelling HRMC to disclose certain documents to plaintiff in discovery. “ ‘Whether or not the party’s motion to compel discovery should be granted or denied is within the trial court’s sound discretion and will not be reversed absent an abuse of discretion.’ ” Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d 316, 318-19 (2007) (quoting Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994)). It is well established, however, that this Court reviews questions of law, as well as questions of statutory construction, de novo. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008). Thus, we review de novo whether the requested documents are privileged under N.C. Gen. Stat. § 131E-95(b). The information that HRMC contends on appeal is protected from disclosure can be grouped into two categories. The first category contains three internal documents of HRMC. One document is an e-mail dated 17 December 2007 from Shirley Trantham, HRMC’s director of Risk Management, to Janet Ledford with the subject of “Peer Review Request.” In the e-mail Trantham reviews six instances of patient care at HRMC. The e-mail summarizes each incident, notes whether any occurrence reports were received, and discusses any quality concerns. It does not identify Ms. Ledford, what position she held, or even for whom she worked. Nor does the e-mail indicate who requested the information or for what purpose it was generated. The second document is a memorandum dated 18 December 2007 with a title indicating that Shirley Harris, former director of Clinical Services at HRMC, requested a review of patient charts. The document, which contains summaries and analyses of six instances of patient care, does not indicate who authored the document, for what purpose it was generated, or who received it. The third document is a memorandum dated 19 December 2007, authored by Dr. Harry Lipham, Chairman of the Intensive Care Unit at HRMC, and addressed to Shirley Harris and Dr. Nancy Freeman. The memorandum indicates it was authored by Dr. Lipham at the request of “Dr. Freeman from the Hospital Board for information concerning allegations that have been made by Dr. Aloha Bryson concerning [certain patients’] care.” It summarizes six patient charts and analyzes the appropriateness of the care provided. The document does not identify who Dr. Freeman is or the purpose for which she requested the information. The documents in the second category were apparently transmitted between HRMC and an outside company called MDReview. They include (1) a letter to Eileen Lipham of HRMC, written on letterhead with the name “MDReview,” that thanks her “for calling on MDReview to assist [her] with [her] peer review needs”; (2) six documents entitled “Peer Review Report” authored by Scott A. Eisman, M.D.; and (3) Dr. Eisman’s curriculum vitae. Each of the reports warn that “THIS IS A CONFIDENTIAL PEER REVIEW DOCUMENT” and state that the document “was prepared at the request of [HRMC] in order to provide an independent professional opinion of the care rendered” to a specifically-referenced patient. “ ‘It is for the party objecting to discovery [of privileged information] to raise the objection in the first instance and he has the burden of establishing the existence of the privilege.’ ” Adams v. Lovette, 105 N.C. App. 23, 28, 411 S.E.2d 620, 624 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2016 (1970)), aff’d per curiam, 332 N.C. 659, 422 S.E.2d 575 (1992). HRMC, therefore, has the burden of establishing that these documents are protected. HRMC contends the documents are protected by N.C. Gen. Stat. § 131E-95(b), which provides in part: The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and . . . shall not be subject to discovery or introduction into evidence in any civil action against a hospital . . . which results from matters which are the subject of evaluation and review by the committee. N.C. Gen. Stat. § 131E-76(5) (2009) in turn defines “[mjedical review committee”: (5) “Medical review committee” means any of the following committees formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing: a. A committee of a state or local professional society. b. A committee of a medical staff of a hospital. c. A committee of a hospital or hospital system, if created by the governing board or medical staff of the hospital or system or operating under written procedures adopted by the governing board or medical staff of the hospital or system. d. A committee of a peer review corporation or organization. “By its plain language, N.C. Gen. Stat. § 131E-95 creates three categories of information protected from discovery and admissibility at trial in a civil action: (1) proceedings of a medical review committee, (2) records and materials produced by a medical review committee, and (3) materials considered by a medical review committee.” Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 126, 678 S.E.2d 787, 791-92 (2009), disc. review denied, 363 N.C. 813, 693 S.E.2d 253 (2010). The statute also, however, provides that “information, documents, or other records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee.” N.C. Gen. Stat. § 131E-95(b). The Supreme Court construed these provisions in Shelton v. Morehead Mem’l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986): These provisions mean that information, in whatever form available, from original sources other than the medical review committee is not immune from discovery or use at trial merely because it was presented during medical review committee proceedings; neither should one who is a member of a medical review committee be prevented from testifying regarding information he learned from sources other than the committee itself, even though that information might have been shared by the committee. The Court explained further: “The statute is designed to encourage candor and objectivity in the internal workings of medical review committees. Permitting access to information not generated by the committee itself but merely presented to it does not impinge on this statutory purpose. These kinds of materials may be discovered and used in evidence even though they were considered by the medical review committee.” Id. at 83-84, 347 S.E.2d at 829. See also Cunningham v. Charles A. Cannon Jr. Mem’l Hosp., Inc., 187 N.C. App. 732, 737, 654 S.E.2d 24, 27 (2007) (“However, § 131E-95 applies to the information generated by a medical review committee. . . . Regardless of its form, the information sought by plaintiff was generated by defendant [physician], not the [medical review committee]. Therefore, the information is discoverable and the trial court did not abuse its discretion in denying defendant’s motion for a protective order.”), disc. review denied, 362 N.C. 356, 661 S.E.2d 244 (2008). HRMC argues that the e-mail and memoranda in the first category of documents are privileged because they relate to internal peer review investigations of patient charts requested by its Risk Management Department. HRMC contends that it is clear from the face of these documents that they were written for the purpose of evaluating the quality of health care and, therefore, that we can assume they were generated by or for a medical review committee. We do not agree. In Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319, this Court stressed that mere assertions that documents constitute peer review materials and meet the requirements of Shelton are insufficient. A trial court properly grants a motion to compel when the “defendants [do] not present any evidence tending to show that the disputed incident reports were (1) part of the [medical review committee’s] proceedings, (2) produced by the [medical review committee], or (3) considered by the [medical review committee] as required by N.C. Gen. Stat. § 131E-107.” Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319. As this Court explained, the statutory requirements are substantive, not formal, requirements. Thus, in order to determine whether the peer review privilege applies, a court must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case. The title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee. Id. at 752, 641 S.E.2d at 319. In the analogous attorney-client privilege context, this Court has similarly held that “[m]ere assertions” that privilege applies “will not suffice.” Multimedia Publ’g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 576, 525 S.E.2d 786, 792, disc. review denied, 351 N.C. 474, 543 S.E.2d 492 (2000). The party claiming privilege must instead proffer “some objective indicia” that the privilege applies. Id. Here, however, HRMC did not submit any “evidence,” as required by Hayes, or “objective indicia,” as required by Multimedia Publishing. Instead, like the Court in Brown v. Am. Partners Fed. Credit Union, 183 N.C. App. 529, 539, 645 S.E.2d 117, 124 (2007), addressing the attorney-client privilege, “we can only determine the applicability of the privilege based upon what the [documents] reveal on their face.” Starting with the first category of documents, HRMC has pointed to no evidence in the record that Shirley Trantham, who sent the 17 December 2007 e-mail, or Janet Ledford, who received it, were members of a medical review committee. The author and recipients of the 18 December 2007 memorandum are not even identified. Neither of these documents explicitly states that it was generated by members of a medical review committee or for a medical review committee’s consideration. There is absolutely no evidence in the record from which this Court can infer that either document is privileged under § 131E-95(b). See Brown, 183 N.C. App. at 535, 645 S.E.2d at 122 (holding that defendant failed to establish that board of directors meeting minutes were protected by attorney-client privilege because documents listed individuals as being present at meeting, but did not identify their positions and, therefore, defendant could not demonstrate that privilege had not been waived). The third document, the 19 December 2007 memorandum, indicates that it was authored by the Chair of the Intensive Care Unit at HRMC for Dr. Freeman “from the Hospital Board.” Nothing in the document itself and nothing in the record specifically identifies what “the Hospital Board” is. In plaintiff’s complaint, she alleges that she composed a letter to the Hospital Authority Board of Commissioners about her concerns. Even assuming arguendo that this is the “Hospital Board” to which the memorandum refers, the Supreme Court in Shelton, 318 N.C. at 84, 347 S.E.2d at 829-30, held that a hospital’s Board of Trustees does not fit the definition of a medical review committee. HRMC has, therefore, failed to present any evidence that the “Hospital Board” in the 19 December 2007 memorandum constituted a medical review committee within the meaning of N.C. Gen. Stat. § 131E-95(b). Turning to the second category of documents, HRMC contends that the six reports and Dr. Eisman’s curriculum vitae are documents generated by a medical review committee because MDReview, the apparent source of these documents, is a “peer review corporation or organization.” HRMC has, however, failed to point to any evidence in the record showing that MDReview is a peer review organization or corporation or that it authored those documents for that purpose. Although the reports identify themselves as peer review documents, as Hayes stated, “[t]he title, description, or stated purpose attached to a document by its creator is not dispositive ....” 181 N.C. App. at 752, 641 S.E.2d at 319. We, therefore, cannot conclude simply from a bare name that MDReview is a peer review organization or corporation. In any event, even if MDReview is a peer review organization or corporation, HRMC has not provided any evidence, as required by N.C. Gen. Stat. § 131E-76(5), that the reports were generated by “[a] committee of a peer review corporation or organization.” (Emphasis added.) In sum, HRMC submitted no affidavits or other evidence to support its claim that the documents at issue were protected from discovery under N.C. Gen. Stat. § 131E-95(b). In addition, the documents on their face do not establish that they are privileged. Thus, HRMC has failed to meet its burden of proof, and accordingly, we affirm the trial court’s order compelling discovery. Affirmed. Judges STROUD and ERVIN concur.

TIMOTHY G. KORNEGAY, Plaintiff v. ASPEN ASSET GROUP, LLC, C. STEVE CLARDY, MICHAEL H. CLARDY, CARLTON S. CLARDY, JR., ROCKING B. FARMS, LLC, BASIC ELECTRIC COMPANY, INC., and EARTH PRODUCTS COMPANY, LLC, Defendants No. COA09-71 (Filed 1 June 2010) 1. Employer and Employee— compensation — existence of agreement — offer and acceptance In a contract action over disputed employment compensation, there was sufficient evidence of an offer and acceptance to warrant denial of defendant’s motion for JNOV where plaintiff testified that he was offered the job in a conversation with defendant Steve Clardy, with the written agreement to follow. 2. Employer and Employee— existence of contract — reference to profits — not unduly vague The trial court did not err in denying the defendant’s motion for a JNOV in an employment contract action that concerned the division of profits. Plaintiff’s evidence was sufficient to require that a jury decide whether a contract existed; no case was found suggesting that a reference to “profits” in an alleged contract is not sufficiently specific or certain to give rise to a contract. 3. Employer and Employee— contract — compensation provisions — divisible Two portions of a disputed employment contract concerning compensation were divisible where two promises by defendant Steve Clardy were in exchange for two distinct return promises by plaintiff. The promises were not interdependent in any way. 4. Employer and Employee— wage and hour claim — bonus— notice of forfeiture In a wage and hour claim, there was nothing to suggest that a bonus was not due plaintiff under N.C.G.S. § 95-25.7 where defendants contended that plaintiff was notified that defendants were forfeiting the bonuses before plaintiff earned them. The General Assembly did not intend to allow a bonus or commission to be cancelled or forfeited with the use of a notice as vague as the memo in question here. 5. Employer and Employee— compensation — bonuses for real estate investments — reasonable time for resale The trial court did not err by allowing plaintiff to proceed under the “reasonable time for resale” rule in an action involving bonuses for real estate investments. 6. Employer and Employee— wage and hour claim — failure to pay bonuses — statute of limitations The trial court properly rejected defendant’s statute of limitations defense to a wage and hour claim concerning the failure to pay bonuses. 7. Discovery— sanction — additional time offered — witness made available for deposition The trial court did not abuse its discretion in choosing as a discovery sanction an order that plaintiff make the witness available for a deposition and that defendants could have additional time. The trial court prepared a well-reasoned order of 14 pages and included a careful discussion of why the trial court had reached its decision. 8. Damages and Remedies— new trial denied — remittitur The trial court did not abuse its discretion by denying defendants’ motion for a new trial on both liability and damages in an employment compensation action. The judgment was based on competent evidence, including both the jury’s finding of a breach of contract and the amount of damages ultimately awarded as a result of the remittitur. 9. Damages and Remedies— remittitur accepted — appeal on separate damages claim not barred A plaintiff who accepted remittitur of the jury damages on a contract claim was not barred from bringing a cross-appeal on liquidated damages and attorney fees on a wage and hour claim, which is a separate claim for relief with separate remedies. 10.Employer and Employee— wage and hour claim — liquidated damages — decided by court rather than jury The trial court did not err in a wage and hour claim by deciding the issue of liquidated damages rather than submitting it to the jury. Plain statutory language requires the employer to show “to the satisfaction of the court” that its actions were in good faith and based on reasonable grounds. 11. Constitutional Law— right to trial by jury — liquidated damages — property rights not involved A liquidated damages issue in a wage and hour claim was properly decided by the trial court where defendant asserted that the failure to submit the claim to the jury violated his constitutional right to a jury trial in actions respecting property. There is no basis for distinguishing between liquidated damages under the Wage and Hour Act and punitive damages and Rule 11 sanctions, which do not involve property rights and a constitutional right to a jury trial. 12. Employer and Employee— wage and hour claim — waiver of defenses The issue of waiver of defenses to a wage and hour claim was not addressed where plaintiff impliedly consented to trial of the issue. 13. Damages and Remedies— liquidated damages — denied The trial court did not err by denying plaintiff liquidated damages on an employment compensation claim where plaintiffs arguments required the adoption of his construction of the evidence concerning the existence of a contract. The trial court had denied plaintiff’s motions for a directed verdict and a JNOV oh that issue. 14. Employer and Employee— compensation claim — findings — sufficiently specific Findings of fact were sufficiently specific where they were adequate to set out the factual basis for the trial court’s conclusions and to explain its rationale. 15. Attorney Fees— denial of motion — employment compensation action The trial court did not abuse its discretion by denying plaintiff’s motion for attorney fees in an action involving employment compensation. Appeal by defendants and cross-appeal by plaintiff from judgment entered 5 February 2008 and order and modified judgment entered 4 June 2008 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 June 2009. Bishop, Capitano & Moss, P.A., by J. Daniel Bishop and Joseph W. Moss, Jr., for plaintiff. James, McElroy & Diehl, P.A., by Gary S. Hemric, John S. Arrowood, John R. Buric, and Preston O. Odom, III, for defendants. GEER, Judge. This appeal arises out of a dispute over an alleged bonus compensation scheme between plaintiff Timothy G. Kornegay and his employer, defendant Aspen Asset Group, LLC (“Aspen”), which is owned by defendants C. Steve Clardy (“Steve Clardy”), Michael H. Clardy (“Mike Clardy”), and Carlton S. Clardy, Jr. (“Chip Clardy”). Defendants have appealed from the trial court’s denial of their motion for judgment notwithstanding the verdict (“JNOV”), contending plaintiff presented insufficient evidence of an enforceable oral contract. Because we believe the evidence, taken in the light most favorable to plaintiff, was sufficient to allow the jury to determine the existence of an énforceable oral contract, we affirm the trial court’s denial of defendants’ motion for JNOV. Defendants also argue the trial court erred in remitting the jury’s damages award rather than granting defendants’ request for a new trial on both liability and damages. Based upon our review of the jury’s verdict, the evidence, and the issues in dispute, we hold that the trial court did not abuse its discretion in denying a new trial on all issues. Plaintiff has cross-appealed from the trial court’s denial of his motion for attorneys’ fees and liquidated damages under the North Carolina Wage and Hour Act (“NCWHA”). We hold that the trial court’s findings of fact, which are supported by competent evidence, are sufficient to support its denial of liquidated damages and attorneys’ fees. Facts Plaintiff met the Clardys in the early 1970s when he attended high school with Mike and Chip Clardy. Steve Clardy, the father of Mike and Chip, was the boys’ scoutmaster in their Boy Scouts troop. The Clardys own Aspen (an investment holding company that buys, sells, and manages real estate investments), as well as defendants Rocking B. Farms, LLC, Basic Electric Company, Inc., and Earth Products Company, LLC. The parties kept in touch over the years, and when plaintiff left another job in May 1996, he sent the Clardys his resume and told them he was looking for work. After receiving plaintiffs resume, Chip Clardy contacted plaintiff and indicated that Steve Clardy wanted to speak with him about a possible job opportunity. Plaintiff and Steve Clardy met approximately eight times between July and September 1996, discussing various ways that plaintiff might work for the Clardys. The content of those discussions is at the heart of the dispute in this case. Plaintiff contends that in the course of those discussions, he and Steve Clardy entered into an oral employment contract. According to plaintiff, his duties under the contract were to identify and present to the Clardys attractive real estate investment opportunities and, if given approval, to acquire, modify, and resell or lease those properties for profit. In exchange, plaintiff would receive an annual salary of $72,000.00 and bonuses under a compensation scheme based on a system of “origination” and “implementation.” “Origination” included scouting out available properties and determining which properties might be a good investment. “Implementation” involved plaintiff’s performing required due diligence, closing the sale, and handling the improvements and leasing of the property. Plaintiff contends that he was supposed to receive 20% of the profits from investment projects he originated and implemented and would receive “fair” compensation for implementing investment projects that he did not originate. Defendants, on the other hand, argue that the conversations between plaintiff and Steve Clardy were nothing more than negotiations and that the parties intended to enter into a written agreement at a later date. It is undisputed by the parties that no written agreement exists. Although plaintiff and Steve Clardy exchanged several drafts of an agreement, none of the drafts was ever agreed upon or signed. Plaintiff worked for Aspen from 1 October 1996 through 25 June 2004. During his employment, Aspen paid plaintiff $72,000.00 annually, but never paid any bonuses. The parties agree that plaintiff originated eight properties for the Clardys. Plaintiff claims, however, that he also originated one more property, the Love property. After all of these properties had been acquired by Aspen, plaintiff, in one of his paychecks, received a handwritten note dated 27 June 2002 that stated: Sal[ary] same as now 72,000.00 annual. No Bonuses No Commissions No Nothing Until Aspen sees fit & confident we are making money. Subsequently, on 11 September 2003, Aspen sold three of the properties. The other six properties remained unsold as of the trial. On 14 December 2004, plaintiff brought suit against defendants in Mecklenburg County Superior Court. Plaintiff alleged that Aspen breached their contract by failing to pay him bonuses of 20% of the profits of investments he originated and implemented and bonuses of a “fair” percentage of the profits of investments he implemented but did not originate. Plaintiff also asserted claims against all defendants for (1) violation of the NCWHA, (2) quantum meruit, and (3) fraud. The case was ultimately assigned to the Business Court. Defendants moved for summary judgment on 5 April 2006, while plaintiff moved for partial summary judgment on 11 May 2006. On 27 September 2006, the trial court entered an order denying summary judgment on plaintiffs breach of contract claim for the 20% bonus on investments he originated and implemented, but granting summary judgment to defendants on plaintiffs breach of contract claim for the “fair” bonuses on investments he implemented but did not originate. The trial court permitted plaintiff to proceed against (1) all defendants under the NCWHA; (2) only Aspen, Rocking B. Farms, Basic Electric, and Earth Products in quantum meruit; and (3) only Aspen and Steve Clardy for fraud. At the close of plaintiffs case at trial, the trial court directed a verdict in favor of Rocking B. Farms, Basic Electric, and Earth Products.on all claims and in favor of all defendants on the fraud claim. The court further concluded that plaintiff was entitled only to nominal damages on the quantum meruit claim asserted against all defendants. The trial court denied renewed directed verdict motions at the close of all the evidence and submitted the surviving claims to the jury. On 12 December 2007, the jury rendered its verdict, making special findings of fact. It found that plaintiff and Aspen had entered into a contract and that Aspen had breached that contract. It further found that Steve and Mike Clardy, but not Chip Clardy, were statutory employers of plaintiff under the NCWHA. The jury next found that plaintiff had originated and implemented the Love property and that defendants could have sold the six unsold properties for a profit in the exercise of reasonable care and judgment. The jury concluded that plaintiff was entitled to damages in the amount of $996,147.60. Plaintiff moved for entry of judgment on the jury’s verdict and for an award of liquidated damages under the NCWHA in the amount of the verdict, for attorneys’ fees in the amount of $315,802.21, and costs of $9,869.45. At the hearing on plaintiffs motion, plaintiff also submitted a request for prejudgment interest in the amount of $124,518.00. On 5 February 2008, the trial court entered judgment on the jury’s breach of contract verdict in the amount of $996,147.60. The court concluded that the breach of contract amount should also be considered wages under the NCWHA and that Aspen, Steve Clardy, and Mike Clardy were liable jointly and severally for the unpaid wages. With respect to the request for liquidated damages, the trial court found that defendants had acted in good faith in discharging their obligations and had a reasonable basis for believing that their refusal to pay bonuses was not in violation of the NCWHA. The trial court, therefore, exercised its discretion not to award liquidated damages. The court also declined to award attorneys’ fees although it did grant the request for costs. The trial court awarded prejudgment interest as to the three properties that had actually been sold, but declined to award prejudgment interest as to the remaining six properties because the court could not determine when the bonuses on those properties became due. Finally, the court dismissed the claim for quantum meruit since the jury had awarded damages for breach of an express contract. Defendants moved for JNOV or, in the alternative, for (a) a new trial on both liability and damages; (b) a new trial on damages; or (c) remittitur of the damage award. In an order entered 28 April 2008, the trial court concluded that it could not reconcile the jury’s award of $996,147.60 with the evidence admitted at trial and plaintiff’s request to the jury for $825,070.40. The trial court noted that plaintiff had objected to remittitur and, therefore, granted a new trial as to damages only. Subsequently, in an order dated 29 May 2008, the trial court stated that plaintiff had clarified that he did not intend to object to remittitur. The trial court, therefore, denied the motion for a new trial on both liability and damages, and stated that it would be entering an amended judgment. The modified judgment was signed on 29 May 2008 and awarded plaintiff damages in the amount of $825,070.40 with prejudgment interest on only $58,424.00 of the judgment. Defendants timely appealed, and plaintiff cross-appealed. Defendants’ Appeal I. Motion for JNOV. Defendants contend that the trial court erred in denying their motion for JNOV. “When determining the correctness of the denial [of a motion] for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party’s favor, or to present a question for the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991) (internal citations omitted). “A motion for judgment notwithstanding the verdict should be denied if there is more than a scintilla of evidence to support the plaintiff’s prima facie case.” Scarborough v. Dillard’s Inc., 188 N.C. App. 430, 431, 655 S.E.2d 875, 876 (2008), rev’d on other grounds, 363 N.C. 715, 693 S.E.2d 640 (2009). A. Breach of Contract Claim. Defendants first argue that the trial court should have granted their motion for JNOV because plaintiff presented insufficient evidence to create a jury question as to the existence of an enforceable, divisible contract. As an initial matter, defendants’ arguments raise two questions: (1) whether there was an offer and acceptance of the terms of employment, and (2) “if so, were the terms agreed upon sufficiently definite and certain to give rise to a contract enforceable by a court of law?” Williams v. Jones, 322 N.C. 42, 48, 366 S.E.2d 433, 437 (1988) (upholding trial court’s denial of JNOV motion). We address each question separately. 1. Whether there was offer and acceptance. Defendants first assert that the discussions between Steve Clardy and plaintiff were merely negotiations to see if they could agree on terms and that the parties intended to enter into a written contract at a later date, which never happened. Our courts have held that when “it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be the contract, then there is no contract until the writing is executed.” Elks v. North State Ins. Co., 159 N.C. 619, 624, 75 S.E. 808, 811 (1912). Defendants primarily rely upon Cole v. Champion Enters., Inc., 496 F. Supp. 2d 613 (M.D.N.C. 2007), aff’d, 305 Fed. Appx. 122 (4th Cir. 2008) (unpublished), in support of their position. In Cole, the employee sought to enforce an alleged oral agreement regarding conditions for his continued employment, while the defendant employer contended that no agreement had ever been reached. The district court acknowledged that, under North Carolina law, “where the evidence is sufficient to support plaintiffs contention that a definite oral agreement was made by the parties, the contract is complete even though the parties contemplated that they would ultimately reduce the agreement to writing.” Id. at 621. Nevertheless, “if it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be a contract, then there is no contract until the writing is executed.” Id. at 622. On this point, the court observed: “ ‘If the parties intend to signal their agreement only by the execution of a written document and do not intend to be bound unless and until all parties sign, no amount of negotiation or oral agreement, no matter how specific, will result in the formation of a binding contract.’ ” Id. (quoting Dow Chem. Co. v. Gen. Elec. Co., 2005 WL 1862418, *32, 2005 U.S. Dist. LEXIS 40866, *88 (E.D.Mich. Aug. 4, 2005)). In deciding that no oral agreement was ever reached in Cole, the district court pointed out first that it was undisputed that the oral discussions could not constitute a verbal agreement because, given the nature of the employee’s position, all terms of his employment were subject to approval by the Board of Directors. Id. at 624-25. Although the Board ultimately did approve some of the terms and conditions of employment, the district court concluded that the approval, while necessary, was not sufficient for a contract since several of the terms were too indefinite to be enforceable without further negotiations and, in any event, “the alleged contract that [the employee sought] to enforce differed] in concept fundamentally from what the Board actually considered and approved.” Id. at 625. The court pointed out that, subsequently, the terms included within the Board approval (such as a salary increase) were not put into effect, but rather the parties exchanged draft agreements in which the employee sought revisions that were irreconcilable with the terms