|Kimberly Winter is a partner at the law firm of White, Freeman & Winter, LLP in Weston, Massachusetts where she concentrates in law related to medical issues.
|Jill Averett is a law student at Boston College Law School and a Summer Associate at the law firm of White, Freeman & Winter, LLP in Weston, Massachusetts.
The Supreme Judicial Court recently examined the Massachusetts medical peer review statute, M.G.L. c. 111, §§ 203, 204, in Ayash v. Dana-Farber Cancer Institute et al.1 Enacted in 1986, the peer review statute was meant to increase the effectiveness of medical peer review by providing that the “proceedings, reports and records of a medical peer review committee” are confidential and not subject to subpoena or discovery, except in limited circumstances.2 Through this assurance of confidentiality, the hope is to encourage physicians to report, testify about and investigate concerns regarding patient safety without fear of retaliatory litigation.
Although Ayash is a broad case addressing multiple issues, two of the court’s holdings specifically interpret the scope and implementation of M.G.L. c. 111, §§ 203, 204.3 First, the court refused to find a private right of action to sue for invasion of privacy under the peer review privilege statutes when protected information is inadvertently or intentionally made public.4 Second, the court held that letters written by the plaintiff’s superior, which negatively portrayed the plaintiff, were protected under the peer review statute because they were “necessary to the work product of medical peer review committees” under the medical staff bylaws of the hospital.5
In November of 1994, two patients at the Dana-Farber Cancer Institute who were participating in an experimental treatment plan for the treatment of breast cancer were accidentally administered overdoses of cyclophosphamide, a powerful chemotherapy drug with well-known heart toxicity. One patient survived the overdose but suffered severe cardiac damage. The other patient, Betsy Lehman, a health columnist for The Boston Globe (the “Globe”), died from the overdose.
The plaintiff, Dr. Lois Ayash, was the chair and principal investigator for this experimental protocol, which was administered under the auspices of the Dana-Farber’s Solid Tumor Autologous Marrow Program (“STAMP”). She was not the attending physician on duty at the time the orders were written, nor did she administer the overdoses to the two patients, but she began a rotation as the attending physician for both patients approximately two weeks after the overdoses.
Dana-Farber established three separate committees to investigate the overdoses. In addition, Dr. David Livingston, the physician-in-chief at Dana-Farber requested that corrective action proceedings be initiated as to the plaintiff based on her role as chair of the protocol, co-director of STAMP, and attending physician following the overdoses. A preliminary report concerning the request for corrective action found that the plaintiff had been insufficiently vigilant as she had not checked the dosing orders but noted that there was no common practice at Dana-Farber for doing so, and otherwise, that there was no evidence of wrongdoing on the plaintiff’s part. The report recommended that a written reprimand be issued to the plaintiff. After consideration of the report, Dana-Farber’s Clinical Executive Committee voted to downgrade the recommended corrective action to an oral reprimand.
During the corrective action proceedings, the plaintiff was placed on “administrative duty” and stripped of her clinical duties at Dana-Farber. She was subjected to extreme public scrutiny. More than 50 articles were written and published in the Globe concerning the accidental overdoses; many of the articles implicated the plaintiff and suggested a cover-up at Dana-Farber. In the first article published by the Globe, for example, it was erroneously reported that the plaintiff countersigned on the overdose orders with five or six other physicians and was the leader of the team that signed the orders. Although the plaintiff had not countersigned the order, and had not been the leader of any such team, no one at Dana-Farber attempted to correct this error.
Analysis of Plaintiff’s Claims Under the Peer Review Statute
In addition to bringing an action against the Globe, the plaintiff sued Dana-Farber for, among other things, invasion of privacy. She claimed that Dana-Farber was responsible for publicly disclosing the peer review proceedings against her and for providing a Globe reporter with confidential “peer review documents” concerning her. The plaintiff alleged intentional interference with advantageous relations against Dr. Livingston based on his role in the corrective action proceedings.
The plaintiff claimed that the release of confidential peer reviewed information was an invasion of privacy under M.G.L. c. 214, § 1B, which creates a statutory right against “unreasonable, substantial or serious” interference with a person’s privacy. The court noted that an invasion of privacy occurs when there is “public disclosure of private facts about the plaintiff (even though such facts are true and no action would lie for defamation).”6 The plaintiff argued that because medical peer review information was statutorily protected as confidential, its disclosure automatically resulted in an invasion of privacy under M.G.L. c. 214, § 1B.
The court held that the peer review privilege statute does not create a private right of action for physicians who are subject to peer review to sue for invasions of privacy when peer reviewed material is released, whether intentionally or inadvertently, to the public. The court went on to find that the information disclosed was limited to the plaintiff’s professional involvement in a matter that had already been extensively publicized, holding that the plaintiff had already “(unwittingly) achieved public figure status by reason of her position as chair and principal investigator of an experimental research protocol under which two patients at a prominent research institution received chemotherapy overdoses.” Any distribution of information, including documents not usually made public, had only further publicized a matter already subject to intense public scrutiny.7
The plaintiff also claimed that Dr. Livingston’s actions in the corrective action proceeding amounted to intentional interference with advantageous business relations. As to that claim, the jury had to find that Dr. Livingston had placed attention on the plaintiff in bad faith, meaning in a manner that was deliberate or motivated by a “spiteful, malignant purpose” to cause harm to the plaintiff, and that was outside of his professional obligations. To prove this element, the plaintiff had introduced into evidence at trial two letters written about the plaintiff by Dr. Livingston. The first was a letter requesting that corrective action proceedings be initiated as to the plaintiff. In a second letter, Dr. Livingston expressed his view that an oral reprimand was an insufficient response to the plaintiff’s “gross lack of insight and oversight.” Dr. Livingston wrote his second letter pursuant to a provision in the hospital’s medical staff bylaws that expressly permitted the initiator of corrective action to respond to a recommendation by the Clinical Executive Committee that did not require a hearing (in this case, the committee’s recommendation that the plaintiff receive only an oral warning).
The Supreme Judicial Court held that both letters were improperly admitted into evidence because both fell within the scope of the peer review privilege. Specifically, the court noted that “proceedings, reports and records” are defined expansively in M.G.L. c. 111, § 205(b) and that peer review protections extend to “information and records...which are necessary to the work product of medical peer review committees.” The letters, therefore, were part of the work product of the peer review committee because they memorialised the role Dr. Livingston played in the proceedings against the plaintiff.
In deciding that these letters were improperly admitted, the court also noted that Dana-Farber’s choosing to share this confidential information with the plaintiff, who was the subject of the peer review proceedings, did not amount to a waiver of the statutory bar against the use at trial of the “proceedings, reports and records” of a medical peer review committee. The court held that “applying waiver principles to peer review communications would significantly undermine the effectiveness of the statute.”8
The court’s analysis in Ayash of the medical peer review statute clarifies several issues regarding the scope and use of the peer review privilege that had not been previously addressed. Ayash will provide guidance to both medical and legal practitioners in future cases involving this important doctrine.
1. 443 Mass. 367, 822 N.E.2d 667 (2005).[back]
2. See M.G.L. c. 111, §§ 204(a) & 205(b). [back]
3. Important issues also addressed by the Ayash case include whether claims for retaliation under M.G.L. c. 151B, § 4(4) are subject to a cap on damages pursuant to M.G.L. c. 231, § 85K, and the claim of testimonial privilege asserted by the reporter and publisher from The Boston Globe.[back]
4. See Ayash, 443 Mass. at 382-83, 822 N.E.2d at 682-83.[back]
5. M.G.L. c. 111, § 205(b); See Ayash, 443 Mass. at 397-98, 822 N.E.2d at 692-93.[back]
6. Ayash, 443 Mass. at 382 n.16, 822 N.E.2d at 682.[back]
7. Ayash, 443 Mass. at 384, 822 N.E.2d at 683.[back]
8. Ayash, 443 Mass. at 397 n.28, 822 N.E.2d at 92 n.28 (citing Miller v. Milton Hosp. & Med. Ctr., 54 Mass.App.Ct. 501, 766 N.E.2d 107 (2002)).[back]