Peer Review

Ayash v. Dana-Farber Cancer Inst., No. SJC-09236 (Mass. Feb. 9, 2005)

A physician sued a hospital, a hospital administrator, and others, seeking damages for invasion of privacy, breach of implied covenant of good faith and fair dealing, unlawful retaliation, intentional interference with contractual relations, and other causes of action in connection with a series of events that occurred in the aftermath of the discovery that two patients enrolled in an experimental breast cancer study at the hospital had mistakenly been administered an overdose of a highly toxic chemotherapy drug.

The Massachusetts Supreme Court held that disclosures about the physician's professional conduct were not actionable because there was no private right of action for a physician under investigation to sue for an invasion of privacy when protected peer review information inadvertently or intentionally is released to the public. The court also held that, although the hospital violated the implied covenant of good faith and fair dealing when it restricted the physician's clinical privileges without first notifying her of her right to a hearing, she could not recover since she could offer no evidence of compensable loss. The court also held that letters written by the physician's superior in response to the committee's recommendations were the product of peer review and were therefore inadmissible. Although the court found that the physician could recover for her claim of retaliation (and that the physician's awards were not limited by a charitable cap), it held that the physician's allegations of bad faith could not be supported and should be dismissed.