issensohn v. CharterCARE Home Health Services a/k/a Roger Williams Medical Center

Supreme Court

No. 2022-42-Appeal.
(PC 12-6232)

Jordan Nissensohn, Administrator of :
the Estate of Michael Nissensohn

v. :

CharterCARE Home Health Services :
a/k/a Roger Williams Medical
Center, et al.

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone 222-3258 or Email
opinionanalyst@courts.ri.gov of any typographical or
other formal errors in order that corrections may be made
before the opinion is published.
Supreme Court

No. 2022-42-Appeal.
(PC 12-6232)

Jordan Nissensohn, Administrator of :
the Estate of Michael Nissensohn

v. :

CharterCARE Home Health Services :
a/k/a Roger Williams Medical
Center, et al.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. The plaintiff, Jordan Nissensohn,

Administrator of the Estate of Michael Nissensohn,1 appeals from a judgment of the

Superior Court entered in favor of the defendants, University Medical Group

(UMG), Alan Epstein, M.D., and Steven Sepe, M.D. (collectively the UMG

defendants), granting summary judgment in their favor. The plaintiff asserts that the

Superior Court erred by finding that: (1) the plaintiff did not engage in protected

conduct under the Rhode Island Whistleblowers’ Protection Act (RIWPA), G.L.

1
Michael Nissensohn, M.D., litigated this case until his death in March 2023. This
Court granted a motion to substitute Jordan Nissensohn, Administrator of the Estate
of Dr. Nissensohn, as the appellant on August 23, 2023. Throughout this opinion,
we refer to Dr. Nissensohn and Jordan Nissensohn, Administrator of the Estate of
Dr. Nissensohn, interchangeably as plaintiff. No disrespect is intended.
-1-
1956 chapter 50 of title 28; (2) Dr. Epstein and UMG’s allegedly defamatory

statements were substantially true or were made outside of the statute of limitations;

(3) teaching was not covered by the plain language of the plaintiff’s employment

agreement; (4) the breach-of-contract claim was preempted by the Payment of

Wages Act, G.L. 1956 chapter 14 of title 28; (5) the plaintiff failed to establish his

claim for tortious interference with contractual relations; (6) Dr. Epstein’s alleged

interference was not causally connected to the plaintiff’s failure to set up a new

practice; and (7) the plaintiff did not provide sufficient nonhearsay evidence to

support his conversion claim. For the reasons set forth herein, we affirm the

judgment of the Superior Court.

Facts and Travel

The plaintiff, Michael Nissensohn, M.D., began working for UMG as a

gastroenterologist in 2003. His employment was governed by a Physician

Employment Agreement with UMG. Pursuant to the agreement, plaintiff was

“employed on a full-time basis actively to practice medicine, provide medical

education and/or conduct biomedical research on behalf of [UMG] * * *.” He was

required to devote “[forty] hours per week of clinical patient hours inclusive of

teaching and administrative activities.”

During plaintiff’s tenure, he was supervised by Dr. Epstein, the head of the

gastroenterology division. The plaintiff shared teaching responsibilities with the

-2-
other doctors in gastroenterology. To offset the burden of these responsibilities, Dr.

Epstein secured administrative money from the hospital each year with the

understanding that the gastroenterology doctors would split this so-called “teaching

money” between the four of them. Nevertheless, from “almost day one,” plaintiff

took issue with the discrepancies between the amount of “teaching money” that Dr.

Epstein promised and the amount that plaintiff actually received.

The plaintiff further clashed with Dr. Epstein when he requested a brief leave

of absence from work. The plaintiff was depressed and told Dr. Epstein that, “[i]f I

don’t get better, I am going to McLean Hospital.”2 Subsequently, a rumor spread

that plaintiff had attempted suicide and had been involuntarily committed to McLean

Hospital. 3 The plaintiff was informed that the rumor originated in the UMG

endoscopy unit. At this time, plaintiff suspected that Dr. Epstein was in an

inappropriate relationship with the head endoscopy nurse, Audrey Kennedy.

Accordingly, believing that Dr. Epstein shared information regarding plaintiff’s

mental health with Ms. Kennedy, plaintiff confronted Dr. Epstein. According to

plaintiff, Dr. Epstein confirmed that he was the source of the information.

At some point during his tenure, plaintiff obtained a permit to carry a

concealed weapon. The plaintiff began showing doctors and other employees his

2
McLean Hospital is a mental health facility within Mass General Brigham.
3
The plaintiff denied that these rumors were true; nevertheless, it was undisputed
that these rumors existed.
-3-
shooting targets “to spur interest in the sport.” He also began carrying his firearm

into the hospital. Some UMG employees knew that plaintiff brought his firearm to

work, but Dr. Epstein and Dr. Sepe, the Chief of Medicine, were not aware of that

fact.

In February 2012, plaintiff met with Kenneth Belcher, the hospital CEO, and

Dr. Sepe to discuss his unhappiness with Dr. Epstein. The plaintiff reported Dr.

Epstein’s disclosure of his mental health information, anger issues, inappropriate

relationship with Ms. Kennedy, and inconsistent promises regarding “teaching

money.” Mr. Belcher agreed that Dr. Epstein’s behavior was inappropriate and that

plaintiff should have a follow-up meeting with Dr. Sepe.

On March 29, 2012, plaintiff met with Dr. Sepe and Dr. Epstein. They

discussed plaintiff’s issues with Dr. Epstein. The meeting was productive, and

plaintiff believed the matter was resolved. However, the next day, Jodi Siegelman,

a physician’s assistant, who was supervised by plaintiff and Dr. Epstein, reported an

incident regarding plaintiff. She reported to Merritt Brown, CEO of UMG, that

about two weeks earlier, plaintiff “came into [her] office, showed [her] three

carboard bulls eye targets with shots clearly fired into them and claimed that these

were depictions of Dr. Epstein, including how they were supposed to be [his] head,

heart, and eyes.”

-4-
The plaintiff conceded that he may have shown Ms. Siegelman a target, but

he denied telling her that the display depicted Dr. Epstein. Ms. Siegelman told her

mother and another physician’s assistant about the alleged incident. She hesitated

to relate the incident to anyone else because she was new at UMG, but she eventually

told Karen Romano, the office manager. Ms. Romano subsequently informed Dr.

Epstein.

Doctor Epstein immediately went to Ms. Siegelman and asked her to explain

what happened, promising her that it would not impact her job. That same day, Ms.

Siegelman sent her report to Mr. Brown, and Dr. Epstein informed Dr. Sepe of the

incident. Doctor Sepe contacted the hospital and met that afternoon with Dr.

Epstein, Mr. Brown, the hospital human resources department, and the hospital’s

attorney to discuss the Siegelman report. After the director of human resources

informed Mr. Belcher of the situation, he called the Providence Police Department

and was advised that the hospital should take the report seriously. The police wanted

to speak with plaintiff as soon as possible and agreed to approach him during his

next scheduled shift, the following Tuesday.

The next Tuesday, April 3, 2012, plaintiff arrived at work and went straight

to the endoscopy suite. He had his loaded firearm with him. At approximately 8:00

a.m., plaintiff was told that there was an emergency and that Mr. Belcher needed to

-5-
see him. He stowed his firearm in his briefcase, put the briefcase under the desk,

and went to the lobby.

When plaintiff entered the lobby, two police officers approached him and

asked him if he was Dr. Nissensohn. When he said yes, the officers pushed him

against the wall, spread his legs, and conducted a pat-down. During the pat-down,

the officers found an empty holster. They asked him if he was carrying a firearm,

and plaintiff responded no. The plaintiff directed the officers to remove his wallet

so that they could see his permit. He falsely informed the officers that his firearm

was locked in his car.

The officers took plaintiff to an office where Mr. Belcher, Dr. Sepe, and

members of the human resources department were waiting. The officers asked

plaintiff again if he had a firearm, which he again denied. The plaintiff was informed

that the hospital had a no-firearm policy, and, at some point, one of the officers left

to search plaintiff’s endoscopy suite for the firearm. The officer discovered

plaintiff’s loaded firearm in his briefcase in his office and returned to the meeting.

Mr. Belcher informed plaintiff that he was not allowed to return to his patients, and

the officers escorted him off the premises. Later that day, Dr. Sepe sent plaintiff a

letter informing him that UMG was placing him on paid administrative leave.

Doctor Sepe further instructed plaintiff to contact the Physicians Health Program to

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set up an appointment. While plaintiff was on leave, Dr. Epstein performed

plaintiff’s scheduled procedures and billed plaintiff’s patients directly.

The next day, plaintiff was served with a no-trespass order. He subsequently

sent Mr. Brown an email asking him to lift the order. The plaintiff wanted the return

of some personal items, including a laptop, which he had left in his office. However,

plaintiff testified that, when his attorney went to retrieve his laptop, his attorney was

informed that he was not allowed to have it back. However, after some delay, the

laptop was returned.

The plaintiff maintained that during his leave, he kept receiving requests from

Dr. Sepe for further psychological evaluations. He met with three forensic

psychiatrists and a psychologist. Despite his compliance, the letters that plaintiff

received in response were “unpleasant” and were interpreted by plaintiff as “being

indicative that they were going to terminate” his employment. Two weeks after the

April 3 incident, the human resources manager informed plaintiff that his leave was

being extended. Subsequently, plaintiff resigned.

The plaintiff’s resignation letter provided that he would “resume and continue

[his] practice at 50 Summerfield Street, Fall [R]iver, Massachusetts.” The Fall River

address was a temporary drop-off location where patients could send their records.

His patients were informed of his new mailing address should they wish to make

contact. However, several patients emailed plaintiff representing that they had

-7-
received conflicting information about his whereabouts. Specifically, they stated

that UMG or Dr. Epstein informed them that plaintiff was on administrative leave,

that he was no longer affiliated with UMG, or that he had gone back to Fall River.

The plaintiff did not reply to his patients’ emails because he was “too upset to

respond * * *.” He subsequently decided to “never get up and running again because

of the trauma from [the] whole thing.”

On December 4, 2012, plaintiff filed his original complaint against the UMG

defendants as well as CharterCARE Home Health Services a/k/a Roger Williams

Medical Center; CharterCARE Health Partners, and Mr. Belcher (collectively the

hospital defendants). On October 16, 2017, plaintiff filed an amended complaint.

The amended complaint asserted eight counts: (1) intentional infliction of emotional

distress against the hospital defendants; (2) defamation against Dr. Epstein; (3)

defamation against UMG; (4) breach-of-contract against UMG; (5) tortious

interference with prospective business relations and contractual relations against Dr.

Epstein; (6) false imprisonment against the hospital defendants; (7) conversion

against CharterCARE Home Health Services a/k/a Roger Williams Medical Center,

CharterCARE Health Partners, and UMG; and (8) constructive discharge/violations

of the RIWPA against UMG.4

4
The amended complaint contained two additional claims: one for breach-of-
contract arising out of UMG’s failure to pay plaintiff for patient care and another for
constructive discharge and violations of the RIWPA. Although plaintiff asserted a
-8-
Thereafter, the UMG defendants filed a motion for summary judgment. In a

subsequent bench decision, the trial justice granted the UMG defendants’ motion for

summary judgment as to each remaining count of plaintiff’s amended complaint. 5

The trial justice granted summary judgment as to plaintiff’s defamation claims

because some of the alleged defamatory statements were made outside of the statute

of limitations and the remaining statements were substantially true or were protected

by a qualified privilege. Summary judgment as to plaintiff’s breach-of-contract

claim was granted because plaintiff’s teaching duties were voluntary and because

plaintiff’s claim for unpaid wages was required to be brought under the Payment of

Wages Act. Therefore, his claim, although styled as one for breach-of-contract, was

barred by the applicable statute of limitations pursuant to § 28-14-19.2(g) and § 28-

14-20(a). The trial justice found that plaintiff’s claim for tortious interference with

prospective business relations failed because he did not demonstrate that Dr.

Epstein’s comments to plaintiff’s former patients were causally connected to

plaintiff’s failure to resume his practice.

breach-of-contract claim against UMG as part of his original complaint, the original
claim was solely for UMG’s failure to compensate him for teaching money. When
plaintiff amended his complaint, he added another claim based on UMG’s failure to
compensate him for patient care.
5
Concurrent with the UMG defendants’ motion for summary judgment, the hospital
defendants filed their own motion for summary judgment. However, before the trial
justice ruled on the hospital defendants’ motion, they reached a settlement agreement
with plaintiff, leaving only the UMG defendants’ motion to be decided.
-9-
Summary judgment was granted as to plaintiff’s conversion claim because

plaintiff provided no competent evidence that he, or his attorney, had demanded his

laptop’s return. The trial justice granted summary judgment as to plaintiff’s RIWPA

claim because plaintiff testified that he believed he was reporting Dr. Epstein for

unethical, but not unlawful, conduct. The trial justice reasoned that the RIWPA

requires a reporter to hold a good-faith belief that the conduct said reporter is

reporting is illegal. Because plaintiff did not hold such a belief, he was not protected

by the RIWPA. Final judgment entered in favor of the UMG defendants on October

21, 2021. The plaintiff filed a timely notice of appeal.

Standard of Review

“This Court reviews a decision granting a party’s motion for summary

judgment de novo.” Citizens Bank, N.A. v. Palermo, 247 A.3d 131, 133 (R.I. 2021)

(quoting Boudreau v. Automatic Temperature Controls, Inc., 212 A.3d 594, 598

(R.I. 2019)). We assess the matter “from the vantage point of the trial justice[,]

* * * view[ing] the evidence in the light most favorable to the nonmoving party, and

if we conclude that there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law, we will affirm * * *.” Id. (quoting

Boudreau, 212 A.3d at 598). “Although summary judgment is recognized as an

extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving

- 10 -
party to produce competent evidence that proves the existence of a disputed issue of

material fact.” Id. (quoting Boudreau, 212 A.3d at 598).

Discussion

RIWPA

The plaintiff argues that the trial justice erred in finding that he did not engage

in protected conduct under the RIWPA because, in his view, he reported actual

violations of the law. The plaintiff asserts that, under the plain language of § 28-50-

3(4), an employee is protected from retaliation if they report a violation of the law

that they reasonably know has occurred. He contends that the statute does not

require the employee to know which law was violated to be afforded protection. The

plaintiff argues that to hold otherwise would undermine the purpose of the RIWPA

because laypeople do not see things in terms of illegal or legal, but rather right or

wrong.

In response, the UMG defendants argue that plaintiff did not engage in

protected conduct because he did not believe that Dr. Epstein’s conduct was

unlawful. Instead, plaintiff believed that the conduct was unethical. They further

argue that, even if we were to accept plaintiff’s interpretation of the RIWPA, he did

not engage in protected conduct because he did not report actual violations of the

law.

- 11 -
“This Court reviews questions of statutory interpretation de novo.” Balmuth

v. Dolce for Town of Portsmouth, 182 A.3d 576, 580 (R.I. 2018). “If a statute is

clear and unambiguous, ‘we must interpret the statute literally and must give the

words of the statute their plain and ordinary meanings.’” Athena Providence Place

v. Pare, 262 A.3d 679, 681 (R.I. 2021) (quoting Balmuth, 182 A.3d at 580).

The RIWPA provides in pertinent part:

“An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the
employee’s compensation, terms, conditions, location, or
privileges of employment:

“* * *

“Because the employee reports verbally or in
writing to the employer or to the employee’s
supervisor a violation, which the employee knows
or reasonably believes has occurred or is about to
occur, of a law or regulation or rule promulgated
under the laws of this state, a political subdivision
of this state, or the United States, unless the
employee knows or has reason to know that the
report is false.” Section 28-50-3.

The clear and unambiguous language of the statute provides that an employee is

protected when he reports a violation of a law, regulation, or rule that he “knows or

reasonably believes has occurred * * *.” Id. (emphasis added). Accordingly, the

employee need only have knowledge, or a reasonable belief, that conduct that

violates the law has occurred, rather than knowledge that the conduct is actually

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illegal. See id. Nevertheless, plaintiff has failed to produce evidence that he engaged

in such protected conduct.

The plaintiff argues that he reported violations of the law because (a) Dr.

Epstein’s anger issues “would eventually lead to a hostile work environment claim”;

(b) adultery is still a crime; (c) the disclosure of protected health information violated

the Health Insurance Portability and Accountability Act (HIPAA); and (d) failing to

pay an employee violates “Rhode Island’s Wage and Hour” laws.

The plaintiff did not report to his supervisors that Dr. Epstein was engaged in

“illicit sexual intercourse” while married. See G.L. 1956 § 11-6-2. Instead, he

reported to Mr. Belcher and Dr. Sepe that Dr. Epstein was in an “inappropriately

close relationship” with Ms. Kennedy. Moreover, plaintiff has not provided this

Court with any meaningful discussion, analysis, or citations to explain how the

remainder of his reports amounted to reports of “a violation * * * of a law or

regulation or rule promulgated under the laws of this state, a political subdivision of

this state, or the United States * * *.” Section 28-50-3. He failed to explain how Dr.

Epstein’s reported “anger issues” violated any state or federal employment laws.6

6
Notably, although plaintiff argues that he was reporting conduct that might lead to
a hostile work environment claim, such claims are typically dependent on
membership in a protected class, rather than simply being subject to a supervisor’s
anger issues. See 14A C.J.S. Civil Rights § 224 (Nov. 2023 Update); see also
DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 22 (R.I. 2005) (noting that in order
to prove a gender-based hostile work environment claim, a plaintiff must prove
membership in a protected class).
- 13 -
He provided no explanation as to how Dr. Epstein’s purported lying about obtaining

$25,000 in “teaching money,” when Dr. Sepe conveyed that Dr. Epstein had in fact

obtained $13,000, violates any of “Rhode Island’s Wage and Hour” laws. Further,

he has not explained how Dr. Epstein’s disclosing to Ms. Kennedy, a fellow health

care provider, that plaintiff was depressed and thinking about going to McLean

Hospital violated HIPAA.

Much time at oral argument was devoted to the alleged HIPAA violation.

Nevertheless, plaintiff did not articulate how Dr. Epstein’s conduct violated HIPAA.

Instead, he rested on the conclusory assertion that Dr. Epstein’s conduct “was in

violation of [HIPAA],” and his personal belief that HIPAA applies to information

disclosed to physicians in their capacity as administrators, rather than as health care

professionals. Without further explanation as to how the disclosure violates any of

HIPAA’s broad and sweeping regulations, we must consider this issue waived.7

Horton v. Portsmouth Police Department, 22 A.3d 1115, 1130 (R.I. 2011).

“[S]imply stating an issue for appellate review, without a meaningful discussion

thereof or legal briefing of the issues, does not assist the Court in focusing on the

legal questions raised, and therefore constitutes a waiver of that issue.” Terzian v.

Lombardi, 180 A.3d 555, 558 (R.I. 2018) (quoting Horton, 22 A.3d at 1130). “Nor

7
The plaintiff’s argument that this conduct was in violation of the Rhode Island
analogue to HIPAA was never raised below and is therefore waived. See Bouchard
v. Clark, 581 A.2d 715, 716 (R.I. 1990).
- 14 -
may the requesting party now advance new theories or raise new issues in order to

secure a reversal of the lower court’s determination.” Nedder v. Rhode Island

Hospital Trust National Bank, 459 A.2d 960, 963 (R.I. 1983) (brackets omitted)

(quoting Ludwig v. Kowal, 419 A.2d 297, 302 (R.I. 1980)).

The plaintiff’s arguments distort the evidence in a retrospective attempt to

mold the facts into an RIWPA claim. Accordingly, plaintiff failed to provide

evidence that he engaged in protected conduct under the RIWPA; as such, the trial

justice did not err in granting summary judgment as to plaintiff’s RIWPA claim.

Having determined that plaintiff failed to engage in protected conduct, we need not

address his arguments as to constructive discharge and causation.

Defamation

Next, plaintiff argues that the trial justice erred in finding that he failed to

establish his defamation claims against Dr. Epstein and UMG. However, plaintiff’s

defamation claim abated at his death. “At common law, causes of action for slander

and for libel do not survive the death of either the wrongdoer or the person injured

by the wrongdoer.” 1 Am. Jur. 2d Abatement, Survival, and Revival § 79 (Oct. 2023

Update); see Young v. Aylesworth, 35 R.I. 259, 262, 86 A. 555, 556 (1913); see also

Cant v. Bartlett, 440 A.2d 388, 392-93 (Md. 1982); Bissette v. University of

Mississippi Medical Center, 282 So.3d 507, 519 (Miss. Ct. App. 2019); Village of

Oakwood v. Makar, 463 N.E.2d 61, 64 (Ohio Ct. App. 1983). Therefore, plaintiff’s

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defamation claim can survive, if at all, only by virtue of the survival statute. Young,

35 R.I. at 262, 86 A. at 556. Our survival statute provides in pertinent part:

“In addition to the causes of action and actions which at
common law survive the death of the plaintiff or defendant
therein, the following causes of action or actions shall also
survive.

“* * *

“(3) Causes of action and actions for damages to the
person or to real and personal estate.” General Laws
1956 § 9-1-6.

The phrase “damages to the person * * * [does] not extend to torts not directly

affecting the person, but only the feelings and reputation.” 8 Young, 35 R.I. at 262,

86 A. at 556. Accordingly, plaintiff’s defamation claim does not survive his death

and is abated. Id. at 262-65, 86 A. at 556-57.

8
Other jurisdictions interpreting their own survival statutes have taken a contrary
view and determined that any distinction between damages for emotional distress
and physical injury is arbitrary. Moyer v. Phillips, 341 A.2d 441, 444-45 (Pa. 1975);
see Canino v. New York News, Inc., 475 A.2d 528, 531-32 (N.J. 1984). However,
we clearly expressed our view in Young v. Aylesworth, 35 R.I. 259, 86 A. 555 (1913),
when we determined whether a claim for conspiracy to defame survived the death
of a defendant. Young, 35 R.I. at 262-63, 86 A. at 555-56. In Young, this Court held
that the plaintiff’s claim was not a claim for “damages to the person” because we
interpreted that phrase as referring to bodily or physical injury rather than damages
to feelings and reputation. Id. at 262, 86 A. at 556. For that reason, we held that the
plaintiff’s claim for conspiracy to defame could survive only if the plaintiff alleged
that the tort directly damaged her estate itself under the “damages to * * * personal
estate” language of the survival statute. Id. at 262-63, 86 A. at 556-57. Because the
plaintiff was claiming injury to her reputation and because she failed to allege a
direct injury to her personal estate, her claim did not survive. Id. at 262-65, 86 A.
556-57.
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Breach-of-Contract

The plaintiff next argues that the trial justice erred in determining that he

failed to establish his claims for breach-of-contract. The plaintiff asserted two

breach-of-contract claims: one based on UMG’s failure to pay him “teaching

money” and one based on its failure to compensate him for patient care. We shall

first address the latter.

The plaintiff argues that the trial justice erred in finding that his breach-of-

contract claim arising from UMG’s failure to compensate him for patient care should

have been brought under the Payment of Wages Act. He contends that he need not

have brought his claim under the Payment of Wages Act because the remedies

provided by this act were cumulative, rather than exclusive of his timely claim for

breach-of-contract. Alternatively, plaintiff argues that his breach-of-contract claim

relates back to his original complaint.

The UMG defendants note that plaintiff alleged for the first time in his 2017

amended complaint that UMG breached his employment contract by failing to pay

him for patient care. Accordingly, they argue that this claim for lost wages is barred

by the three-year statute of limitations established by the Payment of Wages Act.

Ordinarily, the ten-year statute of limitations applicable to “all civil actions” is

applied to breach-of-contract claims. Bisbano v. Strine Printing Company, Inc., 135

A.3d 1202, 1209 (R.I. 2016) (quoting § 9-1-13(a)). The generally applicable statute

- 17 -
of limitations provides that “[e]xcept as otherwise specially provided, all civil

actions shall be commenced within ten (10) years next after the cause of action shall

accrue, and not after.” Section 9-1-13(a). By contrast, civil actions brought to

recover wages under the Payment of Wages Act must be filed “within three (3) years

after the cause of action accrued.” Section 28-14-19.2(g). The generally applicable

statute of limitations applies “[e]xcept as otherwise specially provided.” Section 9-

1-13(a) (emphasis added). Accordingly, we have previously held that the more

specific three-year limitations period contained in the Payment of Wages Act applies

to breach-of-contract claims that are, in substance, claims brought under this act.

Bisbano, 135 A.3d at 1209-10.

The Payment of Wages Act provides that “[a]ny employee or former

employee * * * aggrieved by the failure to pay wages and/or benefits or

misclassification in violation of chapter 12 of this title and/or this chapter may file a

civil action in any court of competent jurisdiction to obtain relief.” Section 28-14-

19.2(a). This act defines “wages” as “all amounts at which the labor or service

rendered is recompensed, whether the amount is fixed or ascertained on a time, task,

piece, commission basis, or other method of calculating the amount.” Section 28-

14-1(4).

Although plaintiff styled his claim for unpaid wages as one for breach-of-

contract, his claim arises from UMG’s failure to pay him “monies for services

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rendered as a full-time employee of UMG in the months leading up to his resignation

on April 24, 2012.” Accordingly, his claim is one for failure to pay wages in

violation of the Payment of Wages Act, and the three-year statute of limitations

contained in § 28-14-19.2(g) is controlling. Bisbano, 135 A.3d at 1209; see §§ 28-

14-1(4), 28-14-19.2(a). The plaintiff’s breach-of-contract claim arising out of the

failure to compensate him for patient care was not raised until he filed the amended

complaint in 2017. Consequently, the claim was clearly filed more than three years

after UMG allegedly failed to pay him for services rendered in 2012. Moreover,

plaintiff failed to raise any argument that his patient services breach-of-contract

claim relates back to the filing of his original complaint below, and it is therefore

waived. Bouchard v. Clark, 581 A.2d 715, 716 (R.I. 1990). Accordingly, we discern

no error in the trial justice’s grant of summary judgment as to plaintiff’s breach-of-

contract claim arising out of UMG’s failure to compensate him for patient care.

The plaintiff’s breach-of-contract claim based upon UMG’s failure to pay him

for teaching duties, however, was filed on December 4, 2012, as part of his original

complaint. Summary judgment was granted as to that claim because plaintiff

testified that his teaching duties were voluntary rather than a requirement of his

employment. The plaintiff argues that the trial justice erred because under his

employment agreement, he was required to work “[forty] hours per week of clinical

patient hours inclusive of teaching and administrative activities.” The UMG

- 19 -
defendants contend that UMG was not contractually required to compensate plaintiff

for teaching because this obligation appears in the “scheduling” section of the

agreement. They further argue that Dr. Epstein’s promise to pay plaintiff teaching

money was not an enforceable contract because Dr. Epstein made it after plaintiff

started teaching.

“In a breach-of-contract claim, the plaintiff must prove both the existence and

breach of a contract, and that the defendant’s breach thereof caused the plaintiff’s

damages.” Fogarty v. Palumbo, 163 A.3d 526, 541 (R.I. 2017). Even assuming that

teaching was a requirement under plaintiff’s employment agreement, he did not

provide evidence of a breach of the written agreement. Instead, plaintiff testified

that Dr. Epstein had breached a “verbal[]” promise to provide plaintiff with

“teaching money”—the additional administrative money that Dr. Epstein obtained

from the hospital each year to offset the burden of teaching. This verbal promise is

not by itself enforceable because the undisputed facts show that Dr. Epstein made

that promise after plaintiff started teaching.

Under the preexisting duty rule, “an agreement modifying a contract is not

supported by consideration if one of the parties to the agreement does or promises

to do something that he is legally obligated to do * * *.” Angel v. Murray, 113 R.I.

482, 489, 322 A.2d 630, 634 (1974). Such a modification will be enforceable only

when “(1) the promise modifying the original contract was made before the contract

- 20 -
was fully performed on either side, (2) the underlying circumstances which

prompted the modification were unanticipated by the parties, and (3) the

modification is fair and equitable.” Id. at 494-95, 322 A.2d at 637.

Doctor Epstein promised plaintiff additional teaching money after plaintiff

entered into the employment agreement. Therefore, even assuming that teaching

was one of plaintiff’s contractual responsibilities, Dr. Epstein’s promise to provide

plaintiff with additional “teaching money” was not supported by consideration. See

Angel, 113 R.I. at 493-95, 322 A.2d at 636-37. The trial justice did not err by

granting the UMG defendants’ motion for summary judgment as to plaintiff’s

“teaching money” breach-of-contract claim.

Tortious Interference

Next, plaintiff argues that the trial justice erred in finding that he did not

establish his claims for tortious interference with contractual relations. Furthermore,

plaintiff argues that Dr. Epstein was a “stranger” to plaintiff’s employment contract

because he acted in his individual capacity. In response, the UMG defendants argue

that Dr. Epstein was not a “stranger” to plaintiff’s employment agreement and that,

therefore, he cannot be liable for tortiously interfering with it. They further note that

plaintiff has offered no evidence to show that Dr. Epstein’s interference was in his

own interests.

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“To prevail on a claim of tortious interference with contractual relations, a

plaintiff must show ‘(1) the existence of a contract; (2) the alleged wrongdoer’s

knowledge of the contract; (3) his [or her] intentional interference; and (4) damages

resulting therefrom.’” Tidewater Realty, LLC v. State, 942 A.2d 986, 993 (R.I. 2008)

(quoting Smith Development Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 211, 308

A.2d 477, 482 (1973)). “[T]o establish a prima facie case of intentional interference

with contract, aggrieved parties must allege and prove not only that the putative

tortfeasors intended to do harm to the contract but that they did so without the benefit

of any legally recognized privilege or other justification.” Belliveau Building

Corporation v. O’Coin, 763 A.2d 622, 627 (R.I. 2000).

Although the parties vigorously contest Dr. Epstein’s status as a “stranger” to

the employment agreement, we need not reach this issue because plaintiff did not

provide any evidence that Dr. Epstein intended to do harm to plaintiff’s contract,

which is an essential element of his claim. See Doe v. Brown University, 253 A.3d

389, 398 (R.I. 2021) (dismissing the plaintiff’s intentional interference claim

because the plaintiff failed to allege that the defendant’s actions were an intentional

interference with her contract). The plaintiff argues that Dr. Epstein tortiously

interfered with plaintiff’s employment contract by withholding “teaching money”

and by taking over plaintiff’s procedures while he was on leave, thereby

“misappropriating accounts receivable.” However, plaintiff offers no explanation as

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to how these actions were intended to harm plaintiff’s employment contract with

UMG. Further, plaintiff’s argument that Dr. Epstein interfered by “advis[ing]

[plaintiff’s] patients that he was no longer available to care for them, [and] * * * that

Dr. Epstein, himself, would take over their care” is unavailing. Based on the

undisputed facts, this alleged interference occurred on May 20, 2012, after plaintiff

resigned. Accordingly, there was no longer an employment contract with which Dr.

Epstein could interfere.

The plaintiff argues that the circumstantial evidence surrounding Ms.

Siegelman’s report could create an inference that Dr. Epstein coerced her to fabricate

the report that interfered with plaintiff’s employment contract, but he made no such

arguments to the trial justice. Therefore, this argument is waived on appeal, and we

find no error in the trial justice’s grant of summary judgment as to plaintiff’s claim

for tortious interference with contractual relations. Nedder, 459 A.2d at 962-63.

Additionally, plaintiff contends that Dr. Epstein tortiously interfered with his

prospective business relations with patients because he inaccurately advised patients

that plaintiff was no longer practicing and allegedly orchestrated the April 3, 2012

police investigation. In response, the UMG defendants argue that Dr. Epstein could

not have interfered with plaintiff’s prospective business relationships because he

never resumed the practice of medicine, so there were no prospective business

relationships with which to interfere. Furthermore, they argue that plaintiff cannot

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show that but for Dr. Epstein’s alleged interference, plaintiff would have set up his

practice in Fall River because plaintiff testified that he decided not to practice due

to the trauma he associated with hospital administration.

“The elements required to establish a claim for intentional interference with

prospective economic relations ‘are identical to those required for a claim based on

intentional interference with contractual relations, except for the requirement in the

latter that an actual contract exists.’” Lomastro v. Iacovelli, 126 A.3d 470, 474 (R.I.

2015) (brackets omitted) (quoting Avilla v. Newport Grand Jai Alai LLC, 935 A.2d

91, 98 (R.I. 2007)). Therefore, the plaintiff must show both “an intentional act of

interference * * * [and] proof that the interference caused the harm sustained * * *.”

Burke v. Gregg, 55 A.3d 212, 222 (R.I. 2012) (quoting L.A. Ray Realty v. Town

Council of Cumberland, 698 A.2d 202, 207 (R.I. 1997)). In order to show causation,

the plaintiff must show “either that but for the interference there would have been a

relationship or that it is reasonably probable that but for the interference the

relationship would have been established.” Id. at 222 (quoting L.A. Ray Realty, 698

A.2d at 207).

The plaintiff has provided no evidence that but for Dr. Epstein “inaccurately

advising client[s] that [plaintiff] was no longer practicing[,]” plaintiff would have

continued his practice in Fall River. Instead, plaintiff’s undisputed testimony

established that he did not resume practice “because of the trauma from this whole

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thing.” Despite Dr. Epstein’s alleged interference, patients still emailed plaintiff to

inquire when he would resume practice, but plaintiff never replied because he was

“too upset to respond * * *.” Therefore, it is not reasonably probable that plaintiff

would have resumed practice but for Dr. Epstein informing plaintiff’s patients that

he was no longer practicing. Burke, 55 A.3d at 222.

The plaintiff’s argument that Dr. Epstein coerced Ms. Siegelman to write the

report and took advantage of the hospital’s no-gun policy by setting up Dr. Epstein

similarly fails. There is no evidence that Dr. Epstein “orchestrat[ed]” the police pat-

down and subsequent interrogation because he did not know that plaintiff would

bring his weapon to work, then lie about it when the police and the hospital

administration investigated Ms. Siegelman’s report. As such, we deem no error in

the trial justice’s grant of summary judgment as to plaintiff’s claim for tortious

interference with prospective business relationships.

Conversion

Finally, plaintiff argues that the trial justice incorrectly concluded that he did

not establish his claim for conversion because the trial justice improperly weighed

evidence in determining that there was no nonhearsay testimony to support

plaintiff’s claim. For their part, the UMG defendants argue that summary judgment

was appropriate because plaintiff failed to offer nonhearsay evidence that he made a

demand for his personal laptop.

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“It is well-established that a demand and refusal are usually required before

an action for conversion can be brought against the possessor of a chattel who has

rightfully obtained possession from one not its owner.” Fuscellaro v. Industrial

National Corporation, 117 R.I. 558, 561, 368 A.2d 1227, 1230 (1977). In such a

case, the plaintiff’s demand for the chattel and the defendant’s refusal to surrender

it are prima facie proof of conversion. Goodbody & Co., Inc. v. Parente, 116 R.I.

437, 440, 358 A.2d 32, 34 (1976).

The trial justice found that the plaintiff failed to provide any nonhearsay

evidence to prove his demand and refusal and thus granted summary judgment as to

the plaintiff’s conversion claim. Nevertheless, on appeal, the plaintiff relies upon

the same evidence that the trial justice determined to be hearsay. In the absence of

any argument as to why disregarding the plaintiff’s evidence was in error, we see no

reason to set aside the decision of the trial justice. Nuzzo v. Nuzzo Campion Stone

Enterprises, Inc., 137 A.3d 711, 717 (R.I. 2016). Accordingly, we shall not disturb

the trial justice’s grant of summary judgment as to the plaintiff’s conversion claim.

Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court.

The papers shall be returned to the Superior Court.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Jordan Nissensohn, Administrator of the Estate of
Title of Case Michael Nissensohn v. CharterCARE Home Health
Services a/k/a Roger Williams Medical Center, et al.
No. 2022-42-Appeal.
Case Number
(PC 12-6232)

Date Opinion Filed January 16, 2024

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Richard D. Raspallo

For Plaintiff:

James A. Ruggieri, Esq.
Attorney(s) on Appeal
For Defendant:

Jessica Schacher Jewell, Esq.

SU-CMS-02A (revised November 2022)