Ayash v. Dana-Farber Cancer Institute
443 Mass. 367, 822 N.E.2d 667, 33 Media L. Rep. (BNA) 1513 (2005)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The statutory cap on charitable organizations' tort liability under G. L. c. 231, § 85K, does not apply to damages awarded for unlawful retaliation claims under G. L. c. 151B because such claims establish new rights not recognized in common law tort. Additionally, documents generated during a hospital's internal medical peer review process are protected from disclosure under G. L. c. 111, § 204, in tort claims like intentional interference, to foster candid professional evaluations.
Facts:
- In November 1994, a research fellow at Dana-Farber Cancer Institute (Dana-Farber) accidentally ordered four-fold overdoses of cyclophosphamide, a chemotherapy drug, for two patients, Betsy Lehman and Maureen Bateman, in an experimental breast cancer treatment protocol (protocol 94-060).
- Dr. Lois J. Ayash was the protocol chair and principal investigator for protocol 94-060; Ms. Lehman died as a result of the overdose, and Ms. Bateman suffered severe cardiac damage.
- Dr. Ayash, who began a rotation as attending physician for Lehman and Bateman on December 1, inquired about Lehman's dose but was misinformed by a colleague, and pharmacological data she reviewed appeared inconclusive.
- On or about February 8, 1995, a Dana-Farber data manager discovered the overdosing errors, and Dr. Ayash reported them the following day.
- Dr. David M. Livingston, Dana-Farber's physician-in-chief, began an informal investigation into the incident, but did not seek Dr. Ayash's account of what had occurred, and Dana-Farber subsequently established three committees to investigate.
- On March 23, 1995, the Globe Newspaper Company (Globe) published an article by reporter Richard A. Knox, initially incorrectly stating that Dr. Ayash had countersigned the erroneous order and naming her as the only physician connected to the overdose, an error the Globe later corrected in June 1995.
- On March 31, 1995, Dr. Livingston requested the initiation of corrective action proceedings against Dr. Ayash, assigned her to administrative duty, and issued a press release disclosing the initiation of proceedings against two unnamed physicians (Dr. Ayash was the only STAMP team member whose identity had been publicly revealed).
- The preliminary corrective action report for Dr. Ayash found her insufficiently vigilant but no evidence of a cover-up or willful misconduct, recommending a written reprimand that was later downgraded to an oral reprimand.
- Dr. Livingston wrote a strongly worded letter disagreeing with the oral reprimand, stating it was insufficient for Dr. Ayash's 'gross lack of insight and oversight' and his letters initiating and commenting on the corrective action were provided to the jury at trial.
- In November 1995, Dr. Ayash filed a charge with the Massachusetts Commission Against Discrimination (MCAD) alleging gender discrimination against Dana-Farber, and after removing her claim to Superior Court, Dana-Farber subsequently notified her in September 1996 that her employment would not be renewed, having earlier made comments to her about harming her career if she proceeded with legal action.
Procedural Posture:
- Dr. Lois J. Ayash commenced an action in the Superior Court against Dana-Farber Cancer Institute, Dr. David M. Livingston, Globe Newspaper Company, Inc., and Richard A. Knox, alleging claims including invasion of privacy, breach of implied covenant, unlawful retaliation, intentional interference, and libel/defamation.
- During discovery, Dr. Ayash sought the identities of Knox's confidential sources.
- The Superior Court entered a judgment of civil contempt against the Globe defendants for refusing to provide this information.
- The Appeals Court vacated the disclosure and contempt orders and remanded the case to the Superior Court.
- On remand, the Superior Court judge again allowed Dr. Ayash's renewed motion to compel disclosure of the confidential sources.
- Upon continued refusal by the Globe defendants, the Superior Court judge entered pretrial default judgments of liability against the Globe defendants as a sanction under Mass. R. Civ. P. 37 (b) (2).
- After a five-week trial, a jury in the Superior Court found Dana-Farber liable for privacy violation, breach of implied covenant, and unlawful retaliation; Dr. Livingston liable for intentional interference; and awarded damages against all defendants.
- The Superior Court judge denied motions for judgment notwithstanding the verdicts by Dana-Farber and Livingston, but applied the charitable cap (G. L. c. 231, § 85K) to Dana-Farber's liability. The judge declined to revisit the default judgments against the Globe defendants and denied motions for new trial or remittitur based on excessive damages.
- An amended judgment was entered, allowing Dr. Ayash to recover $20,000 from Dana-Farber due to the charitable cap.
- Dr. Ayash appealed the application of the charitable cap; Dana-Farber appealed the denial of JNOV on certain claims; Dr. Livingston appealed the denial of JNOV on the intentional interference claim; the Globe defendants appealed the default judgments; and all defendants appealed the denial of motions for remittitur or a new trial on excessive damages.
- The Massachusetts Supreme Judicial Court granted the parties' applications for direct appellate review.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the charitable cap on tort liability (G. L. c. 231, § 85K) apply to damages for unlawful retaliation under G. L. c. 151B, and are medical peer review documents (G. L. c. 111, § 204) admissible as evidence to prove intentional interference with employment relations?
Opinions:
Majority - Greaney, J.
No, the charitable cap under G. L. c. 231, § 85K, does not apply to damages for unlawful retaliation under G. L. c. 151B, and internal medical peer review documents are privileged from disclosure under G. L. c. 111, § 204. The court affirmed the jury's finding of unlawful retaliation against Dana-Farber under G. L. c. 151B, concluding that the charitable cap set forth in G. L. c. 231, § 85K, does not limit these damages. The court reasoned that G. L. c. 151B created broad new rights that did not exist under common law tort or contract, akin to G. L. c. 93A, and therefore, claims under G. L. c. 151B are not considered "torts" for the purposes of § 85K. This interpretation is supported by legislative history where the Legislature removed the charitable exemption from G. L. c. 151B before § 85K was enacted, demonstrating an intent to hold charitable organizations fully accountable for discrimination. The court vacated the judgment against Dr. Livingston for intentional interference with employment relations, holding that his letters initiating and commenting on Dr. Ayash's corrective action proceedings were confidential medical peer review documents protected by G. L. c. 111, § 204, and were improperly admitted into evidence. The court emphasized that the statute protects such documents to foster candid professional performance evaluations and that Dana-Farber sharing them with Dr. Ayash did not waive the privilege against their use in court. Without these privileged documents, the remaining evidence was insufficient to establish that Dr. Livingston acted with the required "spiteful, malignant purpose unrelated to the legitimate corporate interest" necessary to overcome a supervisor's privilege in an intentional interference claim. The court also vacated the judgments against Dana-Farber for invasion of privacy (G. L. c. 214, § 1B) and breach of the implied covenant of good faith and fair dealing. For the privacy claim, the court found that the disclosures about Dr. Ayash's professional conduct were part of a matter of intense public interest, and while embarrassing, were not of a "highly personal or intimate nature" to warrant recovery under the statute, especially given her unwilling public figure status. For the implied covenant claim, while assuming Dana-Farber may have violated its bylaws by restricting Dr. Ayash's clinical privileges without proper notice, the court found she failed to demonstrate any compensable economic loss directly resulting from that specific breach. Since damages for the three claims against Dana-Farber were awarded in an undifferentiated lump sum, the case was remanded for a new trial solely on damages for the remaining retaliation claim. Finally, the court affirmed the default judgments and associated damage awards against the Globe defendants. The court found no abuse of discretion in the trial judge's decision to impose default judgments as a sanction for the Globe defendants' refusal to disclose confidential sources. The judge had conducted the appropriate balancing test, finding Dr. Ayash's need for the information to pursue her claims outweighed the public interest in protecting the free flow of information, and that lesser sanctions had failed to secure compliance. The damages awarded against the Globe defendants, though high, were supported by evidence of the significant career impact and severe emotional distress caused by their articles.
Analysis:
This case significantly clarifies the scope of liability for charitable organizations in Massachusetts, establishing that G. L. c. 151B claims are not subject to the charitable cap, thereby increasing potential exposure for such institutions in discrimination and retaliation lawsuits. It also reinforces the strong protections afforded to medical peer review processes, emphasizing the confidentiality of documents related to such reviews and setting a high bar for proving bad faith sufficient to overcome the supervisor's privilege in intentional interference claims. The affirmation of default judgments against news media for failing to disclose sources underscores judicial authority in discovery and the limits of common-law reporter's privilege when a plaintiff's need for information is substantial.
