DOCKET |
SJC-09797 |
Dates: |
December 6, 2006 - February 27, 2007 |
Present |
Marshall, C.J., Ireland, Spina, Cowin, & Cordy,
JJ. |
County |
Franklin |
KEYWORDS |
Libel and Slander. Practice, Civil, Discovery. Privileged
Communication. Doctor, Privileged communication. Evidence,
Privileged record. Hospital, Peer
review. |
Civil action commenced in the Superior Court Department on March
3, 2005.
A motion to compel discovery was heard by John A. Agostini, J.,
and a motion for reconsideration was heard by him.
Leave to prosecute an interlocutory appeal was allowed in the
Appeals Court by Mark V. Green, J.
The Supreme Judicial Court granted an application for direct
appellate review.
Francis D. Dibble, Jr. (Gaston de los Reyes with him) for the
defendants.
Thomas T. Merrigan (Paul W. Shaw with him) for the plaintiff.
The following submitted briefs for amici curiae:
Carl Valvo & John R. Hitt for Massachusetts Medical
Society.
Colin J. Zick & Kalah E. Auchincloss for Massachusetts
Hospital Association.
MARSHALL, C.J. In this defamation action brought by a physician,
the defendant hospital and hospital administrators appeal from an
interlocutory order of a Superior Court judge ordering production of
documents and responses to interrogatories the defendants claim are
protected from discovery under the "medical peer review privilege."
See G. L. c. 111, §§ 204 (a)- (b) and 205 (b).(4) The information
ordered to be produced included credentialing communications between
the defendants and third parties and materials related to the
physician's summary suspension from the hospital after an incident
of alleged verbal and physical threatening behavior and the
consequent activities of the hospital's medical peer review
committee.(5)
In ordering discovery of the disputed documents, the judge
concluded that the credentialing communications fell outside the
ambit of privileged medical peer review materials, and that the
other information requested, while within the privilege, must
nevertheless be produced under the statutory exception for peer
review activities not undertaken in good faith. See G. L. c. 111, §§
204 (b), 205 (b); G. L. c. 231, § 85N. Thus, we are asked once again
to examine the extent to which communications for the purpose of
medical peer review may be kept confidential and for what purposes
the privilege may be pierced. See Pardo v. General Hosp. Corp., 446
Mass. 1 (2006). For the reasons discussed below, we conclude that
the order must be vacated and the case remanded for further
proceedings consistent with our opinion.
1. Background. We summarize the relevant facts from the judge's
memorandum of decision and from the record, reserving the recitation
of other relevant facts for later discussion. The defendant Franklin
Medical Center (FMC) is a licensed Massachusetts hospital. As such,
it is required by stringent Federal and State laws and regulations
to maintain quality assessment and risk management programs. Among
these programs are policies and procedures to report and address
behavior by hospital staff that might be inconsistent with or
harmful to good patient care or safety. G. L. c. 111, § 203 (a)-(d).
Accordingly, FMC established medical staff bylaws that provided,
among other things, for the summary suspension of a physician's
membership or clinical privileges when necessary 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
. . . [f]or the continued effective operation of the Medical
Center."(6) FMC also established a separate policy on medical staff
"disruptive behavior" that specifies the targeted behavior(7) and
set out detailed procedures for documentation, investigation, notice
to the physician with the opportunity to respond, and "corrective"
actions.(8)
The incident that precipitated this litigation occurred at
approximately 7 A.M. on October 28, 2004, at a regularly scheduled
meeting of FMC's surgical support services committee. In attendance
was the plaintiff, William Vranos, an orthopedic surgeon who was a
partner in Franklin Orthopedic Group in Greenfield, a member of the
medical staff of FMC, and, since January, 2002, chief of FMC's
department of surgery. Also attending were Henry K. Godek, FMC chief
of anesthesia; the defendant Kenneth Gaspard, director of surgical
and material services; and Kim Cotter, Gaspard's assistant.
During the meeting, Vranos and Gaspard exchanged heated words
over a new policy that would restrict the availability of surgical
services. The parties agree that the argument quickly escalated,
although they offer differing accounts of who used inappropriate and
threatening verbal and body language to whom. It is uncontested that
approximately ten days before the meeting, forty-nine members of the
department of surgery, including Vranos, signed a "memorandum of
concern" (memorandum) expressing doubts about the judgment of
Gaspard and Cotter in managing the surgical department.
Shortly after the meeting, Gaspard reported to the defendant
Michael D. Skinner, FMC's president, that he had been physically
threatened and verbally abused by Vranos at the meeting. Gaspard
told Skinner that Vranos raised his voice repeatedly, slammed charts
and documents down on the table, grabbed a chair and threw it aside,
and angrily demanded that Gaspard remain in the meeting when Gaspard
wanted to leave. Gaspard told Skinner that he was afraid during the
incident that Vranos might hit him, and that he still felt
unsafe.
Skinner and Vranos had had previous dealings concerning Vranos's
relationship to FMC. Specifically, for nearly six months prior to
October 28, 2004, Skinner attempted to recruit Vranos to leave the
Franklin Orthopedic Group and establish a competing orthopedic
practice at FMC. Vranos had declined Skinner's offer and instead, in
September, 2004, accepted a position at Brattleboro Memorial
Hospital in Vermont, less than twenty miles from FMC, effective
January 1, 2005.
At approximately 8:30 A.M. on the day of the altercation, Skinner
met with Cotter and John Brady, FMC's director of human resources.
Cotter corroborated Gaspard's version of events, and said she had
been frightened during the encounter between Vranos and Gaspard. At
one point during her meeting with Skinner and Brady, Cotter began to
tremble and cry. Subsequent to these meetings, Skinner arranged for
the vice-president of hospital operations and the director of
employee relations to interview Gaspard and Cotter to confirm their
accounts.
On October 29, 2004, Skinner called Vranos to his office. During
the meeting, Skinner handed Vranos a notice of a summary suspension,
effective immediately.(9) The notice stated in part that Vranos
"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 [himself] physically close
to one or more individuals while speaking in loud, angry, and
confrontational manner [during the October 28 meeting]." The notice
also stated that Vranos had "a history of disruptive behavior . . .
[and] unprofessional conduct . . . at FMC," and that Vranos's
behavior and conduct "has been perceived to be intimidating,
abusive, hostile, and physically threatening."(10)
The judge determined, for purposes of the discovery order, that,
prior to issuing the notice to Vranos, Skinner did not give Vranos
the opportunity to explain himself. Nor did Skinner contact Godek
prior to issuing the summary suspension or consult with the patient
care assessment coordinator as provided in FMC's policy addressing
disruptive physician behavior. However, pursuant to its medical
staff bylaws, within three business days of the suspension, on
November 3, 2004, FMC convened a medical staff summary suspension
review committee (review committee) to consider the terms of
Vranos's suspension and to advise FMC's board of trustees whether to
continue, modify, or terminate the suspension. The bylaws provided
that the review committee be composed of various officers and staff,
including the president or a designated representative. Skinner was
a member of the review committee that considered Vranos's suspension
on November 3.
After reviewing submissions by Vranos, Godek, Gaspard, Cotter,
Skinner, and several other physicians, the committee recommended
that Vranos's suspension be lifted provided that he (1) resign as
chief of surgery; (2) apologize to Gaspard and Cotter; and (3) seek
anger management counseling or its equivalent. The FMC board of
trustees (trustees) accepted the recommendation on November 9.
Vranos agreed to the terms, and the suspension was lifted that day.
Vranos waived his right to a hearing to challenge his suspension and
returned to work on November 10, with full medical staff membership
and clinical privileges.
On March 3, 2005, Vranos filed his unverified complaint for
defamation against FMC, Skinner, and Gaspard.(11) The gravamen of
Vranos's complaint is that, in the course of the summary suspension
investigation and review, Skinner and Gaspard published untrue
statements about Vranos's professional conduct that were motivated
by their animus toward Vranos as a result of their prior
interactions with him, as recounted above.(12) In the course of
discovery, Vranos requested production of two categories of
information: (1) documents and responses to interrogatories
concerning credentialing communications between FMC and other
hospitals, State regulators, and other credentialing organizations
(credentialing materials)(13) and (2) material prepared for the
summary suspension of Vranos in connection with the peer review
committee, including incident reports, memoranda, narrative
statements, committee minutes, and other documents submitted to the
review committee and the board of trustees (disputed peer review
documents).(14) The defendants objected to the majority of the
requests on the basis of the medical peer review privilege, and
Vranos subsequently moved to compel discovery, which the judge
allowed in relevant part.(15) Simultaneously, the hospital
petitioned for reconsideration and for interlocutory review by a
single justice of the Appeals Court pursuant to G. L. c. 231, § 118.
The motion for reconsideration was denied on April 24, 2006, and on
May 11, 2006, the single justice granted FMC's petition. On July 19,
2006, we granted Vranos's application for direct appellate
review.
2. Discussion. Because our opinion involves the complex
regulatory scheme governing health care facility quality assessment
and risk management, we begin with a brief summary of that scheme,
which we have described at some length in prior cases. See, e.g.,
Carr v. Howard, 426 Mass. 514, 517-526 (1998); Beth Israel Hosp.
Ass'n v. Board of Registration in Med., 401 Mass. 172, 177-182
(1987).
(a) Medical peer review. Strong public policy mandates the
highest quality of care in our health care facilities. That public
policy finds voice in, among others, a strict regulatory scheme
covering virtually all aspects of hospital operations. Integral to
this regulatory scheme is an effective process for self-scrutiny,
manifest most prominently in the medical peer review process. For
more than twenty years, both Federal and State laws have required
and regulated medical peer review committees in hospitals, and for
that same length of time, laws have protected the confidentiality of
medical peer review proceedings. See generally Carr v. Howard, supra
at 517-518. The Health Care Quality Improvement Act, 42 U.S.C. §§
11101-11152 (2000), first enacted in 1986, codified Federal
standards for medical peer review that provided limited immunity to
committee members and made confidential documents submitted to a
national physicians' data bank. See id. Following passage of the
Health Care Quality Improvement Act, the Legislature enacted laws
and the Board of Registration in Medicine (board) promulgated
regulations that progressively offered increased immunity for
medical peer review committee members and witnesses and privilege
against subpoena, discovery, and the use in evidence of documents
related to medical peer review. See id. at 518-519. We have
recognized that the intent of these confidentiality provisions is
"[t]o 'promote candor and confidentiality' in the peer review
process . . . and to 'foster aggressive critiquing of medical care
by the provider's peers.'" Pardo v. General Hosp. Corp., 446 Mass.
1, 11 (2006), quoting Carr v. Howard, supra at 518, and Beth Israel
Hosp. Ass'n v. Board of Registration in Med., supra at 182. To
advance the Legislature's purpose, we have reviewed the statutory
medical peer review privilege broadly. See, e.g., Beth Israel Hosp.
Ass'n v. Board of Registration in Med., supra (G. L. c. 111, § 204
[a], establishes "a broad privilege").
Taken together, G. L. c. 111, § 204 (a) and § 205 (b), provide
weighty protection to a medical peer review committee's work product
and materials. They express the Legislature's considered judgment
that the quality of health care is best promoted by favoring candor
in the medical peer review process. Necessarily, the interests of
the general public in quality health care are elevated over the
interest of individual health care professionals in unfettered
access to information about peer review of their actions. See Carr
v. Howard, supra at 532 ("the peer review privilege imposes some
hardship on litigants seeking to discover information from hospital
records, but the Legislature has clearly chosen to impose that
burden on individual litigants in order to improve the medical peer
review process generally").
Nevertheless, the staff member at the center of the medical peer
review process is not without recourse to ensure fairness. Medical
peer review committees are required by Federal and State laws and
regulations to provide medical personnel with notice and an
opportunity to be heard about decisions of a peer review committee
affecting them. See G. L. c. 111, § 203 (b); 42 U.S.C. § 11112 (a)
(3). Testimony from members of, or witnesses before, a medical peer
review committee may be obtained "as to matters known to such
persons independent of the committee's proceedings." G. L. c. 111, §
204 (c). See 243 Code Mass. Regs. § 304 (4) (1994). Information "not
necessary to comply with risk management and quality assurance
programs" is discoverable even if created or used by a peer review
committee. G. L. c. 111, § 205 (b). See Carr v. Howard, supra at
524.
The Legislature has permitted the subject of a medical peer
review to pierce the statutory privilege to establish a cause of
action against the member of a peer review committee for the
member's failure to act in good faith pursuant to G. L. c. 231, §
85N. We have recognized that the exception for failure to act in
good faith must be construed narrowly to preserve the purposes of
the peer review privilege to promote good health care. See Pardo v.
General Hosp. Corp., supra at 10-11. Therefore, the exception
operates to invade the peer review privilege only "on some threshold
showing that a member of a medical peer review committee did not act
in good faith in connection with his activities as a member of the
committee, for example did not provide the medical peer review
committee with a full and honest disclosure of all the relevant
circumstances, but sought to mislead the committee in some manner."
Id at 11-12.
We now consider whether the judge properly ordered production of
the disputed communications.
(b) Credentialing communications. The judge ruled that
credentialing communications concerning Vranos between the
defendants and the board, the Vermont Board of Medical Practice,
Brattleboro Memorial Hospital, and other credentialing organizations
were not covered by the medical peer review privilege and must be
produced. This was error.
First, the defendants' communications to the board concerning
Vranos's conduct, including peer review materials, were not
voluntary but rather mandated as part of the hospital's obligation
to participate in health care facility quality assessment and risk
management programs. See, e.g., G. L. c. 111, § 53B; 243 Code Mass.
Regs. § 2.07 (17)(c) (1995) ("an essential element of a Patient Care
Assessment Program pursuant to 243 [Code Mass. Regs. §§] 3.00, is
that a reporting entity report any 'disciplinary action' to the
Board relating to any employment practice, association for the
purpose of providing patient care, or privileges"); G. L. c. 112, §
5F ("Any health care provider . . . shall report to the board any
person who there is reasonable basis to believe is in violation of .
. . any of the regulations of the board . . ."). These materials do
not lose their character as "proceedings, reports and records"
pursuant to G. L. c. 111, § 204 (a), or information and work product
"necessary" to meet the hospital's statutory risk management and
quality assessment programs pursuant to G. L. c. 111, § 205 (b),
merely because they are required to be furnished to the board. To
hold otherwise would severely undermine the Legislature's carefully
constructed scheme to promote systemwide good health care, for the
statutory obligation to report incidents of unprofessional physician
behavior would render meaningless the incentives confidentiality and
privilege offer to peer review committee members and witnesses to
proceed in all candor. A similar analysis pertains to the
credentialing documents the hospital was required to send to
Brattleboro Memorial Hospital in response to its credentialing
inquiry. Carr v. Howard, supra at 524-525. See 243 Code Mass. Regs.
§§ 3.05, 3.12 (1) (d) (1994).
Finally, although Massachusetts laws and regulations do not
expressly require a health care facility to provide credentialing
information to another State's board of registration in medicine, we
assume without deciding that applying the medical peer review
privilege to such communications is also consistent with the
Legislature's intent to provide broad protection for candid
assessments of a physician's performance. See 243 Code Mass. Regs. §
3.01 (board regulations intended to promote "active self- scrutiny
and reporting of adverse incidents in in-patient and out-patient
settings to permit individual physicians, institutions and the Board
to recognize patterns requiring corrective action"). See also Carr
v. Howard, supra at 517-519; Beth Israel Hosp. Ass'n v. Board of
Registration in Med., 401 Mass. 172, 182 (1987).
In short, the judge erred in designating the credentialing
communications outside the scope of the medical peer review
privilege.
(c) Peer review privilege. We next address the order to produce
the disputed peer review documents.(16) We consider only whether the
judge erred in concluding that these documents fell within the
"single, narrow exception to the privilege 'to establish' that a
member of a peer review committee did not act 'in good faith and in
the reasonable belief that based on all of the facts the action or
inaction on his part was warranted' during the peer review process."
Pardo v. General Hosp. Corp., supra at 11, citing G. L. c. 111, §
204 (b), and G. L. c. 231, § 85N. See id. at 12 n.24 (distinguishing
claims for "bad faith" from claims for failure to act in "good
faith").(17) The judge cited two pieces of "undisputed evidence" as
"key" to his conclusion that the privilege should be abrogated.
First, "there were circumstances attendant to the incident which
suggest the possibility of ulterior motives on the part of Skinner"
(emphases added), including the possibility of FMC losing revenue
when Vranos switched hospitals, see note 12, supra, and Vranos's
signature on the memorandum of concern. Second, "the nature and
vigor" of Skinner's investigation of Vranos "indicates that Skinner
may have used the peer-review process without the requisite good
faith" (emphases added). These suspicions, as we shall explain, are
insufficient to pierce the thick armor of the privilege.
As an initial matter, we note that Vranos did not in fact submit
any evidence to support his discovery claims. His discovery argument
rests on the claims that "[g]ood faith was missing because Skinner's
animus was unrelated to [Vranos's] professional qualities, which
caused Skinner to purposefully avoid exculpatory facts about the
incident and to avoid investigating the facts in a reasonable
manner." However, Vranos's complaint was unverified, and unlike
Skinner, he never submitted an affidavit to establish a factual
foundation supporting his position. Thus, despite the judge's
reference to "the collective weight of the evidence" in favor of
Vranos, any evidence before the judge was submitted by and in
support of the defendants; the only evidence on the record was the
uncontested testimony proffered in Skinner's affidavit. In spite of
this, the judge held in favor of the plaintiff's conclusory and
unverified statements. This reliance alone would be a ground to
vacate the order.(18)
With specific reference to the medical peer review privilege, we
have taken pains to emphasize that "mere inference" will not suffice
to meet the movant's burden to pierce the medical peer review
privilege. Pardo v. General Hosp. Corp., supra at 12; Carr v.
Howard, supra at 531 (privilege may not be pierced where plaintiff
has provided "no contradictory evidence" to show that documents at
issue are not mandated by board regulations). We have stressed that,
to break through the medical peer review process, the moving party
must show that the medical review process itself, and not the
reasons for initiating it, was infected with lack of good faith.
Pardo v. General Hosp. Corp., supra at 12 ("The focus must be on the
committee member's actions within the peer review committee process
itself, not on possible discriminatory reasons for initiating a
review of the plaintiff's work" [emphasis added]). Thus, Vranos's
theory that the desire for vengeance motivated Skinner's initiation
of the investigation, which the judge accepted, is irrelevant.
Vranos has failed to point to any evidence of misconduct within the
peer review process (which, in fact, resulted in the lifting of
Vranos's summary suspension). See Pardo v. General Hosp. Corp.,
supra at 12-13, quoting Doe v. St. Joseph's Hosp. of Fort Wayne, 42
Empl. Prac. Dec. (CCH) par. 36,973 (N.D. Ind. 1987) ("plaintiff must
'allege facts which create more than a mere inference that the
actions of the peer review committee were discriminatory, before the
court will permit even an in camera inspection of the communications
to, records of or determinations of the peer review
committee'").
Moreover, even if Vranos's speculations were sufficient to meet
his burden, which they are not, the conclusions drawn by the judge
are far from self-evident. The judge, for example, concluded that
Skinner's initial investigation of the incident leading to Vranos's
summary suspension was "inadequate and somewhat arbitrary" because,
under FMC's bylaws, such a remedy (suspension) "seems to be
intended" for "grave and immediate safety concerns."(19) In fact,
FMC's bylaws submitted to the judge as part of Skinner's affidavit
provide that summary suspension is appropriate "[t]o reduce the
substantial likelihood of injury or damage to the health or safety
of any patient, employee, or other person at [FMC]" and "[f]or the
continued effective operation of [FMC]." It is also evident that
summary suspension proceedings are necessarily conducted quickly and
without the time for a thorough review of all evidence.(20) We do
not consider indicative of lack of good faith that Skinner, as FMC's
president, would act swiftly and decisively in response to a
disruptive incident between two members of the FMC staff that had
tremendous potential to disrupt the day-to-day operations of the
entire institution.(21) Finally, we note that Vranos knowingly
declined to exercise his right to contest his temporary suspension
to the trustees and cannot now rely on speculation to obtain
information that might otherwise have been available to him.
The exceptions to the privilege urged by Vranos would decimate
the efficacy of confidentiality protections in G. L. c. 111, § 204
(a), any time a plaintiff asserts an allegation of bad faith, which
undoubtedly more plaintiffs would do if we accepted Vranos's
argument. "It does not seem reasonable that the Legislature would
create a [peer review committee] privilege and through an exception
undercut the confidentiality that that privilege allows." Beth
Israel Hosp. Ass'n v. Board of Registration in Med., 401 Mass. 172,
182 (1987).
3. Conclusion. For the foregoing reasons, the judge's order is
vacated, and the case is remanded for further proceedings consistent
with our opinion.
So ordered.
(1) 1 The documents filed in this action were ordered temporarily
impounded and unavailable for public inspection on March 8, 2005, as
a result of a joint motion. On March 16, 2006, a Superior Court
judge signed an impoundment order after hearing from both parties.
Counsel agreed that impoundment was in the best interests of the
parties and in the public interest to safeguard the confidentiality
of statutorily protected peer review materials and documents. We
conclude on inspection of the orders that the purpose of impoundment
was to protect the confidentiality of documents, including the
pleadings and the peer review materials at issue, excluding names of
parties and facts of the case. Counsel for the plaintiff openly
acknowledged at oral argument that "the purposes [for impoundment]
have long since become superseded by the way in which this case has
evolved in the court." The initial order was designed for very
limited purposes to accommodate the needs of the parties at the
time, and no real need for impoundment currently exists. In so
holding, we reiterate our previous observation that "impoundment is
always the exception to the rule, and the power to deny public
access to judicial records is to be 'strictly construed in favor of
the general principle of publicity.'" Republican Co. v. Appeals
Court, 442 Mass. 218, 223 (2004), quoting Commonwealth v. Blondin,
324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950).
(2) 2 Michael D. Skinner and Kenneth Gaspard.
(3) 3 We acknowledge the briefs of amicus curiae filed on behalf
of the Massachusetts Medical Society and the Massachusetts Hospital
Association.
(4) General Laws c. 111, § 204 (a), states in relevant part:
"[T]he proceedings, reports and records of a medical peer review
committee shall be confidential and . . . shall not be subject to
subpoena or discovery, or introduced into evidence."
General Laws c. 111, § 205 (b), provides: "Information and
records which are necessary to comply with risk management and
quality assurance programs established by the board of registration
in medicine and which are necessary to the work product of medical
peer review committees, including incident reports required to be
furnished to the board of registration in medicine . . . shall be
deemed to be proceedings, reports or records of a medical peer
review committee for purposes of [G. L. c. 111, § 204] . . . ."
(5) "Medical peer review committee" is defined in G. L. c. 111, §
1, as "a committee of a state or local professional society of
health care providers . . . or of a medical staff of a public
hospital or licensed hospital . . . which committee has as its
function the evaluation or improvement of the quality of health care
rendered by providers of health care services, the determination
whether health care services were performed in compliance with the
applicable standards of care . . . [or] the determination of whether
a health care provider's actions call into question such health care
provider's fitness to provide health care services . . . ."
(6) Section 2.1 of the FMC bylaws provides in full: "Summary
suspension of a practitioner's Medical Staff membership or all or
any portion of a practitioner's clinical privileges, or both, may be
imposed whenever the failure to take such action may result in an
imminent danger to the life, health, or safety of any 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."
(7) "Disruptive behavior may include, but is not limited to, the
following:
"Verbal (or physical) assaults that are personal, irrelevant,
rude, insulting, or otherwise inappropriate or unprofessional.
"Inappropriate or unprofessional expressions of anger,
destruction of property, or throwing items.
"Hostile, angry, abusive, aggressive, or confrontational voice or
body language.
"Language or criticism directed to the recipient in such a way as
to ridicule, intimidate, undermine confidence, or belittle.
"Derogatory, derisive, or otherwise inappropriate or
unprofessional comments concerning other Members, FMC staff, health
care providers, or caregivers made to patients, family members, or
others.
"Malicious, arbitrary, or otherwise inappropriate or
unprofessional comments made orally or noted in a medical
record.
"Disregard for FMC or Medical Staff policies and
procedures or the refusal to work cooperatively with others or to
participate in committee or departmental affairs."
(8) The American Medical Association (AMA) has published
guidelines for treatment of and discipline for physicians with
disruptive behavior. The AMA recommends that medical staff develop
and adopt bylaw provisions or policies for intervening in situations
where a physician's behavior is identified as disruptive.
Suggestions for implementation of such policies include establishing
a process to review or verify reports of disruptive physician
behavior, establishing a process to notify a physician whose
behavior is disruptive that a report has been made, providing the
physician with an opportunity to respond to the report, monitoring
improvement after intervention, providing for evaluative and
corrective actions, and providing clear guidelines for the
protection of confidentiality. See American Medical Association,
Physicians and Disruptive Behavior (July 2004). See also 243 Code
Mass. Regs. § 3.01 (1993): "[E]nhancement of patient care assessment
will be accomplished through the strengthening and formalizing of
programs of credentialing, quality assurance, utilization review,
risk management and peer review in institutions and by assuring that
these functions are thoroughly integrated and overseen by the
institutions' corporation and physician leadership."
(9) In his complaint, Vranos alleged that the notice was handed
to him at the beginning of the meeting. Skinner averred in an
affidavit that he handed the notice of summary suspension to Vranos
only after hearing Vranos's versions of events and finding them not
credible.
(10) Skinner's affidavit states that, prior to summarily
suspending Vranos, Skinner was aware of previous instances of
disruptive behavior on Vranos's part, an allegation that Vranos in
his unverified pleadings strenuously denies.
(11) Vranos had filed an earlier action in the Superior Court
that the defendants successfully removed to the United States
District Court for the District of Massachusetts and that Vranos
subsequently voluntarily withdrew.
Vranos's initial complaint in this action consisted of six
counts, including defamation against Gaspard, Skinner, and FMC;
breach of contract by FMC; violation of the duty of good faith and
fair dealing by FMC; violation of the Massachusetts Civil Rights Act
against Skinner and FMC; and interference with contractual and
advantageous relations by Skinner. The defendants moved to dismiss
all counts under Mass. R. Civ. P. 12 (b) (6), 364 Mass. 754 (1974),
for failure to state a claim. A Superior Court judge dismissed four
of the six counts, and denied the motion to dismiss on the
defamation counts.
(12) Specifically, Vranos's complaint and subsequent pleadings
allege that Gaspard and Cotter were seeking revenge for Vranos's
signing the memorandum of concern about their leadership, and that
Skinner was worried that, in light of Vranos's reputation in the
community and the proximity of his new hospital to FMC, FMC would
lose revenue as a result of Vranos's departure.
(13) Request no. 14 of Vranos's first request for production of
documents included: "All documents submitted to the Massachusetts
Board of Registration in Medicine, the Vermont Board of Medical
Practice, Brattleboro Memorial Hospital, and any other entity
concerning plaintiff's summary suspension, including copies of
reference letters sent by Drs. Blomstedt and Blacksin to Brattleboro
Memorial Hospital." The judge ordered that this request be answered.
The judge also ordered responses to related interrogatories,
including, for example, no. 1: "In the ten years prior to October
29, 2004, how many summary suspensions were imposed on members of
the FMC medical staff?"; no. 3: "In the two years prior to October
29, 2004, how many corrective actions were initiated against members
of the FMC medical staff?" The judge grouped such material under the
caption "Non-Peer Review Discovery," without further
elaboration.
(14) The judge found that Skinner's affidavit describes six
categories of documents withheld on the ground of privilege: "(1)
Physician incident reports prepared by Gaspard and Cotter; (2) a
narrative statement describing the incident prepared by Godek; (3)
memoranda to the file following the incident by Skinner 'or by
others' and submitted to Skinner, concerning conversations with
Gaspard, Cotter, and Vranos; (4) documents submitted to the
committee convened pursuant to the bylaws to review the summary
suspension and the minutes of a meeting of the summary suspension
review committee; (5) documents submitted to the [trustees]
concerning the [trustees'] review of summary suspension; and (6)
correspondence to the plaintiff concerning the summary suspension,
including 'special notice of summary suspension' and a 'notice of
final action.'" FMC also produced a privilege log describing
sixty-eight documents withheld from production and the privileges
cited for each.
(15) The judge first ordered production of various documents and
interrogatories designated by the judge to be "Non-Peer Review
Discovery," including those documents relating to credentialing
communications. In this category, the judge also ordered FMC to
produce Vranos's medical staff file, stating that if FMC contended
that the documents in the staff file are protected by peer review,
such documents shall be provided to the court for an in camera
inspection. Second, the judge ordered production of a subset of
documents requested by Vranos relating to the peer review process,
but subject to the "single, narrow exception" to the prohibition
against discovery. FMC subsequently filed a request for in camera
inspection of itemized documents from Vranos's medical staff file.
In his order on four posttrial motions, the judge withheld a
decision on the issue of in camera inspection pending any order of
the Appeals Court. The judge denied FMC's motion for
reconsideration, and allowed motions for protective orders for the
credentialing documents and business documents.
(16) There is no dispute that the documents falling in this
category (e.g., proceedings, reports, and records) are peer review
materials. Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass.
App. Ct. 495, 499 (2002), instructs that a reviewing court first
determine whether the records for which the privilege is claimed
clearly fall within the privilege on their face. If the records are
not facially privileged, the court should consider evidence
proffered by the party asserting the privilege. The aim of the
inquiry is to determine whether the document was created by, or
otherwise as a result of a "medical peer review committee." See Carr
v. Howard, 426 Mass. 514, 531 (1998). For purposes of the present
action, we will assume, without further inquiry, and in accordance
with the judge's conclusion, that the records considered by the
reviewing committee fall within the privilege. These include:
memoranda following the incident by Skinner or others, documents
submitted to the committee and the minutes of the suspension review
committee, documents submitted to the trustees, and correspondence
to the plaintiff concerning the summary suspension.
(17) Pardo v. General Hosp. Corp., 446 Mass. 1 (2006), was issued
while the judge was considering the parties' respective discovery
motions and was discussed in the judge's memorandum of decision in a
section entitled "Bad Faith Exception to the Peer Review
Privilege."
(18) Vranos argues that any insufficiency in evidence was
remedied by an affidavit he submitted in response to FMC's motion
for reconsideration. The affidavit was not included in the record
before us, and is not specifically discussed in the brief denial of
the motion to reconsider. In any event, we reject the argument that
Vranos's affidavit provides ex post facto support for the judge's
discovery order.
(19) The judge properly held, and Vranos does not dispute, that
Skinner "had the authority to issue a summary suspension in this
case," where Vranos's conduct required immediate action to reduce
the substantial likelihood of injury to an employee of FMC, or for
its continued effective operation.
(20) Vranos argues, and the judge concluded, that FMC's policy on
disruptive behavior states that a complaint about such behavior
should first be brought to FMC's patient care coordinator for
corrective action. However, its policy on medical staff disruptive
behavior states: "Notwithstanding any provision of [the disruptive
behavior] policy, one or more incidents of disruptive behavior by a
Member may be grounds for corrective action or other disciplinary
action under the procedures set forth in the FMC Medical Staff
Bylaws. Nothing in this policy is intended to preempt, interfere
with, or otherwise affect the procedures for corrective action and
other disciplinary action set forth in the FMC Medical Staff Bylaws"
(emphasis added).
(21) Skinner stated in his affidavit: "I did not make the
decision to impose summary suspension against [Vranos] lightly. I
understood that I had the option of imposing summary suspension or
initiating a request for corrective action. After learning of the
incident involving Vranos on the morning of October 28, I had to
balance the competing needs of getting information and addressing
the situation expeditiously. I discussed the situation generally
with seasoned health care professionals who deal regularly with
medical staff issues. . . .
"I made a final decision that summary suspension was
not only warranted, but necessary because [Vranos] accepted no
responsibility whatsoever for his role in a troubling incident and
because at least some cooling off period was required before I
could comfortably allow him to work again in our Surgery
Department . . . ."
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