MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
Mary Murray was fired from her position as an OB/GYN with
Augusta Physicians Services ("APS") after she
complained that the CEO of both Trinity Hospital and APS,
Jason Studley, ordered her to make patient referrals to
Trinity Hospital that she believed violated the federal
self-referral law known as the Stark Act. She sued Studley,
APS, and Community Health Systems Professional Services
Corporation ("CHSPSC"),  the company that provided
management services to APS. In her complaint, Murray alleged
that Studley retaliated against her, in violation of the
Georgia False Medicaid Claims Act, OCGA § 49-4-168.4;
that he was an agent of APS and CHSPSC; and that following
her termination he made defamatory statements to two other
physicians, Dr. Joseph and Dr. Davis. The trial court granted
summary judgment to all defendants on all claims, and this
thorough review of the record, we conclude that Murray failed
to establish a prima facie case of retaliation, and
therefore, we affirm the grant of summary judgment to all
defendants on this claim. With respect to the defamation
claims, we conclude that the statements Studley made to Dr.
Joseph were privileged, and we affirm the grant of summary
judgment to all defendants on this claim. However, the
statements Studley made to Dr. Davis were not privileged as a
matter of law. Therefore, we vacate the trial court's
award of summary judgment to Studley on this claim and remand
the case for further proceedings. As to defendants APS and
CHSPSC, there is no evidence that Studley was "expressly
directed or authorized" to make the statements to Dr.
Davis, as is required to establish vicarious liability, and
the trial court properly determined they were entitled to
summary judgment on this defamation claim as well.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. OCGA § 9-11-56(c). A de novo standard of
review applies to an appeal from a grant of summary judgment,
and we view the evidence, and all reasonable conclusions and
inferences drawn from it, in the light most favorable to the
(Citation omitted.) Caldon v. Bd. of Regents of the Univ.
System of Ga., 311 Ga.App. 155 (715 S.E.2d 487) (2011).
viewed, the evidence shows that Studley is the CEO of both
Trinity Hospital and APS, two entities owned by the same
umbrella corporation. APS employs various doctors in
designated practice groups, including OB/GYN. CHSPSC is a
physician management company that provides consulting
services such as business strategy, capital planning, and
acquisitions to Studley in his capacity as CEO of APS. CHSPSC
was never Studley's or Murray's employer.
2011, Dr. Murray was recruited to Trinity Hospital, and she
and another physician, Dr. Christie, formed an OB/GYN
practice under APS. Murray's initial contract was renewed
at the end of the first year, and, as Murray admits, the
contract also provided that she could be terminated without
cause. These employment contracts were approved by CHSPSC
management and listed APS as Murray's employer.
Murray was employed by APS, and APS was affiliated with
Trinity Hospital, she sometimes referred patients to other
area hospitals, a practice referred to as
"splitting." These other referrals negatively
impacted Trinity Hospital's revenue, and Studley
occasionally inquired as to why Murray made them. Given that
one of the hospital's goals was to minimize losses
resulting from referrals elsewhere, Studley created a plan to
help Murray increase her productivity at Trinity Hospital and
about July 13, 2013, Studley held a meeting with Murray, APS
CFO Elmer Polite, and APS administrative manager Deann
Brooks. During this meeting, Studley instructed Murray to
refer all of her patients to Trinity Hospital for all
surgical procedures and essentially prohibited her from
treating patients at any hospital other than Trinity. Murray
informed Studley that this was "not really what [she]
signed up for, " but she discussed placing a sign in the
office to inform patients that she would only be providing
services at Trinity Hospital.
this meeting, Murray discussed the instruction with Brooks,
Dr. Christie, and her practice office manager, Susan Allen,
stating that she did not think it was a good idea because
patients would be upset. Murray also expressed concern to
Brooks that such referrals would violate federal Stark law,
which prohibits doctors from making referrals to entities in
which they have a financial interest and submitting claims
for such services for payment under Medicare or Medicaid,
given that the hospital and APS were both owned by the same
corporation. See generally 42 USC § 1395nn (a), (g).
response to Murray's concern, Brooks stated she would
talk to Studley. Within the next few days, Brooks told Murray
to "just ignore" Studley's new rule, that
Brooks thought Studley had been mad when he gave the
instruction, and that Studley had "taken that
e-mail dated July 20, 2013, Polite advised Studley that
Trinity Hospital and APS needed to eliminate between 45 to 50
positions, leading Studley to impose a reduction in force.
About 20 people, including Murray and one of her staff
members, were terminated in the reduction. Studley estimated
he saved about 30 other jobs by terminating Murray, although
he could not identify which specific jobs were saved.
Studley stated that Murray's termination was part of the
reduction in force, he later gave conflicting explanations
for Murray's termination, including that he terminated
Murray because of (1) financial concerns after she repeatedly
fell below performance expectations, (2) concerns about her
overhead and expenses because she was not generating enough
revenue to defray her contribution towards those costs, (3)
complaints from patients that they experienced long wait
times, (4) concerns that Murray treated her Medicaid patients
differently from other patients, and (5) a contract dispute
or failed contract negotiations. Studley told Murray that
"the corporation" was forcing him to fire her,
along with many other people. However, after Murray's
termination, there was an advertisement for an OB/GYN
position at Trinity Hospital.
her termination, Murray was unable to join another practice
in the Augusta area, and she requested a letter of
recommendation from Studley to facilitate her job search
elsewhere. Studley refused to provide a letter because Murray
had not signed a release of information, per hospital policy.
Dr. Allan Joseph, who was chair of the OB/GYN Department at
Trinity Hospital, a member of the hospital medical executive
committee, and a member of the hospital board, approached
Studley to discuss writing a letter for Murray. During this
meeting, Joseph asked Studley about Murray's termination.
Studley told Joseph that he could not discuss all the
reasons, but he had been concerned that Murray had treated
patients covered by Medicaid less favorably. Studley also
told Joseph that Murray had been on probation prior to her
termination, and that Murray was aware of his concerns.
Nevertheless, Studley agreed to allow Joseph to write Murray
a letter of recommendation on hospital letterhead.
Wendy Davis, a general surgeon who sometimes referred
patients to Murray and was friendly with Murray socially,
also spoke with Studley about Murray's termination. Davis
initiated this conversation in the doctor's lounge, but
no one else was present at the table. In this discussion,
Studley allegedly mentioned that he had been concerned that
Murray was treating her Medicaid patients less favorably.
However, Studley denied making such a statement. The trial
court granted summary judgment to all defendants on all
claims, and this appeal followed.
turning to the merits of Murray's claims on appeal, we
briefly set out the federal statutory scheme known as the
Stark Act. The Stark Act prohibits healthcare entities from
submitting Medicare claims for payment based on patient
referrals from physicians having a "financial
relationship" with the entity. 42 USC § 1395nn. The
Act also prohibits a healthcare entity from presenting or
causing to be presented a Medicare claim for services
furnished pursuant to a prohibited self-referral. 42 USC
§ 1395nn (a) (1) (B). Notably, there are various safe
harbor provisions that permit certain self-referrals under
specific conditions, including bona fide employment
relationships. See 42 USC § 1395nn (b), (e) (2).
However, even in the context of a bona fide relationship, the
compensation arrangement between the physician and the health
care entity must "not [be] determined in a manner that
takes into account (directly or indirectly) the volume or
value of any referrals by the referring physician." 42
USC § 1395nn (e) (2) (B) (ii). With this framework in
mind, we turn to Murray's claims for retaliation and
argues that she was terminated in retaliation for her
complaint about conduct she believed to ...