Court: Massachusetts Supreme Judicial Court; February 9, 2005; Massachusetts; State Supreme Court
Dr. Lois J. Ayash filed a lawsuit in the Superior Court against Dana-Farber Cancer Institute, Dr. David M. Livingston, Globe Newspaper Company, and reporter Richard A. Knox, seeking damages following the overdosing of two patients in an experimental breast cancer study, which resulted in the death of columnist Betsy A. Lehman. Ayash accused the Globe defendants of publishing defamatory articles that wrongly implicated her in the incident, damaging her reputation. She also claimed that Dana-Farber and Livingston improperly focused public scrutiny on her by releasing confidential peer review information to the media, allegedly to distract from systemic issues at the hospital.
The amended complaint included claims against Dana-Farber for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and unlawful retaliation; against Livingston for intentional interference with contractual relations; against the Globe defendants for libel; and against Knox for intentional interference and emotional distress. During discovery, Ayash sought the identities of Knox's sources, but the Globe defendants refused despite a court order, leading to a civil contempt judgment. The Appeals Court later vacated this order, citing concerns about the free flow of information.
On remand, after further refusals from the Globe defendants, the court imposed pretrial default judgments of liability in favor of Ayash. A jury subsequently found Dana-Farber liable for infringing on Ayash's privacy rights, breaching her employment contract, and unlawful retaliation, awarding her $1,265,000 in total damages. The jury also held Livingston liable for $840,000 in damages related to his interference with Ayash's employment.
The jury awarded the plaintiff $1,680,000 against the Globe defendants, broken down into $240,000 for economic damages and $1,440,000 for emotional distress damages, and $420,000 against Knox, comprising $60,000 in economic damages and $360,000 in emotional distress damages. Following this, various motions were filed: Dana-Farber and Livingston sought judgment notwithstanding the verdicts; Dana-Farber requested application of the charitable cap under G. L. c. 231, § 85K; the Globe defendants contested the default judgments; and all defendants sought a new trial or remittitur due to excessive damages. The judge upheld the jury’s verdicts against Dana-Farber and Livingston but applied the charitable cap to Dana-Farber's damages. The judge did not alter the default judgment and determined that the jury's damage awards, though high, were not excessive, denying all motions for remittitur. An amended judgment allowed the plaintiff to recover $20,000 from Dana-Farber, plus costs and interest. Cross appeals were filed: the plaintiff contested the charitable cap; Dana-Farber challenged the denial of its motion regarding various claims; Livingston contested the denial of his motion on intentional interference; and the Globe defendants appealed the default judgment. The court granted direct appellate review, vacated the judgments against Dana-Farber for invasion of privacy and breach of the implied covenant, and against Livingston for interference with employment relations, directing entry of judgments for them on those claims. The court affirmed the verdict against Dana-Farber for unlawful retaliation and ruled that the charitable cap does not apply to such damages. The default judgments against the Globe defendants were affirmed. The vacated judgments against Dana-Farber necessitate a retrial on damages, prompting remand to the Superior Court. The facts reveal that in November 1994, a research fellow at Dana-Farber mistakenly ordered overdoses of a chemotherapy drug for two patients in a clinical trial, with the plaintiff serving as protocol chair and principal investigator.
Both Bateman and Lehman experienced immediate adverse reactions to cyclophosphamide treatment, resulting in severe cardiac damage for Bateman and Lehman's death on December 3, with an autopsy failing to determine the cause. The plaintiff, who became the attending physician for both patients on December 1, questioned Dr. Richardson about the chemotherapy dosage administered to Lehman after her death, receiving confirmation that the dosage was correct. The plaintiff later shared pharmacological data with the STAMP team, indicating inconclusive results regarding the treatment's effects. Approximately two weeks later, during a meeting, the plaintiff reiterated that the dosage given to Lehman was appropriate and suggested that her death likely resulted from cyclophosphamide modulation, without opposition from colleagues.
On February 8, 1995, a data manager at Dana-Farber discovered errors in dosing, which the plaintiff reported to the human protection committee the following day. The hospital promptly informed the families of both patients about the errors and suspended clinical work under protocol 94-060. Livingston, the physician-in-chief, initiated an informal investigation but did not consult the plaintiff. Dana-Farber then formed three committees to investigate the overdoses: an internal peer review committee (Sallan committee), an external peer review committee (Devita committee), and an internal audit team for protocol 94-060.
On March 22, 1995, Livingston publicly acknowledged the overdoses as resulting from "human error," outlining corrective measures and the establishment of review committees to prevent future incidents. He promised to publicly disclose the committees' findings once fully analyzed. Subsequently, some staff were placed on administrative duty, though the plaintiff's clinical privileges remained intact. The incident garnered significant media attention, particularly from the Globe.
On March 23, 1995, the Globe published a front-page article by Knox alleging that a physician's orders caused the death of a cancer patient, attributing an overdose error to a "physician working as a research fellow" and implicating the plaintiff as the only physician linked to the incident. The article inaccurately stated that the plaintiff had countersigned the overdose order and was the team leader, which she denied. Despite these inaccuracies, neither Dana-Farber nor Livingston took steps to correct the public impression of her culpability. The following day, the Globe editorialized about the overdoses, highlighting the glaring nature of the error. A subsequent column by Bella English criticized the involved staff's competence, implying criminal negligence. When questioned about the accuracy of the report regarding the plaintiff, Livingston refrained from commenting.
On March 25, a second article by Knox noted that Dana-Farber was investigating the overdoses and quoted Livingston regarding the potential cover-up. Livingston requested corrective action against the plaintiff for her alleged failure to address the overdose issue, citing her positions within the organization. A letter detailing this request was sent to Dr. Barbara E. Bierer and copied to the plaintiff, asserting confidentiality in the proceedings. Despite the confidentiality stipulations in Dana-Farber's bylaws, a third article on April 1 reported the initiation of disciplinary actions against unnamed staff members involved in the overdoses, although the plaintiff was not explicitly named. On May 2, the Globe published an article that identified the plaintiff directly.
An article by Knox on May 2 highlighted conflicting views regarding the timeline of overdose indications related to Lehman's case. While hospital officials claimed that the first signs of overdose appeared two and a half months after Lehman's death, some specialists argued that laboratory tests should have indicated the overdoses much earlier, potentially affecting Lehman's survival. The piece noted that only physicians Ayash and Foran faced internal disciplinary actions initiated by Dana-Farber.
On April 1, as corrective action proceedings against the plaintiff began, she was reassigned to "administrative duty," limiting her clinical responsibilities. A preliminary report later found that the plaintiff had not adequately monitored the dosing order but recognized that this was not standard practice at Dana-Farber. The report concluded there was no evidence of a cover-up or misconduct by the plaintiff and suggested a written reprimand, though it acknowledged differing opinions on the plaintiff's responsibility, which the report's author did not endorse.
On June 30, the clinical executive committee supported the report's findings but downgraded the sanction to an oral reprimand. Both the plaintiff and her supervisor, Livingston, were allowed to comment on the report, with Livingston expressing strong disagreement regarding the sufficiency of the reprimand. The plaintiff contested her responsibility and the potential impact of early overdose detection on patient outcomes in a letter to Dana-Farber’s president, without directly addressing the committee's report.
In August, the executive committee of Dana-Farber's board endorsed the oral reprimand recommendation. Following the completion of the corrective action proceedings on August 8, the plaintiff's clinical duties were restored. However, due to her reassignment during the proceedings, Dana-Farber was required to notify the Board of Registration in Medicine, maintaining that this information should remain confidential until a statement of allegations was issued. The board conducted its investigation and sent a private warning letter to the plaintiff regarding her failure to investigate possible overdoses, despite clear indications.
The Sallan committee produced two critical documents: (1) a synopsis detailing the conclusions and recommendations of the Internal Peer Review Committee of the Dana-Farber Cancer Institute, and (2) a response outlining the Institute's actions in reaction to the findings. These documents encapsulated the committee's investigative process, analysis, and specific recommendations regarding the plaintiff. Despite attempts to restrict the synopsis's distribution, an unidentified source provided the documents to Knox in mid-1995. On October 30, Dana-Farber released a press statement summarizing the committee's findings, which referred to the plaintiff as the "principal investigator." The following day, Knox published an article in the Globe titled “Dana-Farber Puts Focus on Mistakes in Overdoses,” highlighting failures by the physician overseeing overdosed patients, including inadequate review of medical records. The physician was later reprimanded for her role in the incident. Although the article did not name the physician, prior reports identified her as Dr. Lois Ayash. The plaintiff and another physician, Foran, were named as being under investigation by the board of registration in medicine. The full Sallan committee report was never made public. Subsequently, in November 1995, the plaintiff filed a gender discrimination charge against Dana-Farber with the Massachusetts Commission Against Discrimination (MCAD), which she later removed to file a complaint in Superior Court. The day after filing, she was informed by Sallan and other officials that previously discussed clinical positions were no longer available to her.
Kufe informed the plaintiff that she could not work with another STAMP team physician who had previously expressed willingness to collaborate. Sallan suggested the plaintiff work from home to prevent awkwardness and urged her to complete any manuscripts related to STAMP. He indicated that he would reassign her protocols, except for one nearly finished, to another physician. The plaintiff testified that Sallan was aware of the lawsuit filed against the institution, as her superiors had referenced it. In September 1995, Dr. Emil Frei allowed her to return to the STAMP team under the condition that she would leave in six to twelve months, warning her that legal action could be detrimental. Kufe also threatened that Dana-Farber would "squash [her] like a bug." On September 6, 1996, Dana-Farber notified her that her employment would end on June 30, 1997, leading her to accept another job offer. On October 7, 1999, the plaintiff amended her complaint to include a claim of unlawful retaliatory discharge under G. L. c. 151B, § 4(4).
The claims against Dana-Farber include an invasion of statutory right to privacy under General Laws c. 214, § 1B, which protects against "unreasonable, substantial or serious" interference with privacy. To succeed in a claim for the dissemination of private information, the plaintiff must prove the disclosure was both unreasonable and substantial or serious. The Restatement (Second) of Torts states that individuals have aspects of their lives they keep private, and disclosing these details in a highly offensive manner can result in an actionable invasion of privacy unless it pertains to legitimate public interest. In employment contexts, a balance must be struck between the employer’s business interests and the employee’s privacy. Past cases indicate that disclosures made by officials regarding an employee's fitness or conduct do not constitute an invasion of privacy.
The statute prohibits the disclosure of highly personal or intimate facts about individuals unless there is a legitimate interest justifying such disclosure. The court rejected the plaintiff’s claim that releasing information from a medical peer review committee automatically constitutes an invasion of privacy under Massachusetts law, as the confidentiality of these proceedings is intended to encourage honest professional evaluations. The peer review privilege protects the confidentiality of participating physicians and does not provide a private right of action for those under investigation to sue for invasion of privacy when such information is disclosed. Despite the plaintiff's claim that Dana-Farber leaked confidential information, the jury could find that Dana-Farber was responsible for publicly disclosing the fact that a peer review was occurring against the plaintiff and for providing documents suggesting her involvement in overdoses. The plaintiff, previously not a public figure, became one due to her role in a high-profile case involving chemotherapy overdoses, which attracted significant public attention. Consequently, any additional information released was merely further publicity on an already public matter, thus not constituting an invasion of privacy. The court concluded that the disclosures related to the plaintiff's professional conduct were not of an exceptionally personal nature, and while they may have been embarrassing, they did not meet the standards for recovery under the privacy statute. Additionally, every contract in Massachusetts is subject to an implied covenant of good faith and fair dealing.
The implied covenant of good faith and fair dealing cannot create new rights or obligations beyond those outlined in an existing contract; it is limited to the manner of performance within that contract. This covenant aims to fulfill the contract's objectives and is shaped by the specific contractual relationship involved. In employment contexts, employers may be liable for breaching this covenant only when an at-will employee is terminated in bad faith. Claims that an employer acted unfairly, such as withholding information or misidentifying an employee, do not support a recovery claim under this implied covenant.
In the case at hand, the plaintiff's primary argument is that Dana-Farber failed to adhere to its own medical staff bylaws before imposing restrictions on her clinical privileges. Although not definitively ruled upon, it is suggested that a physician could claim a breach of this implied covenant against a hospital for not following its bylaws. The bylaws at Dana-Farber outline rights relating to corrective actions and hearings regarding staff privileges. Specifically, Article 6.7 grants affected physicians rights in hearings concerning their privileges. Under Article 6.5, if a physician's privileges are summarily restricted for over fourteen days without a committee recommendation, they are entitled to the same rights as in Article 6.7, including a hearing and written notification of this right. The plaintiff did not receive a hearing or any formal notification of her right to a hearing following her reassignment to administrative duties on March 31, 1995, which is a critical point of her claim.
A copy of the bylaws was included in a letter notifying the plaintiff about a corrective action investigation. The plaintiff was given the chance to speak before the committee but declined. The jury could determine whether the plaintiff had the right to request a hearing and whether she received constructive notice of that right. The jury might reasonably conclude that Dana-Farber breached its bylaws and the implied covenant of good faith and fair dealing by restricting the plaintiff’s clinical privileges without properly notifying her of her right to a hearing. However, the judgment against Dana-Farber was vacated due to the plaintiff's failure to demonstrate any compensable loss from the breach, as her clinical privileges were restored within a few months and she was compensated for her employment. The plaintiff is not entitled to damages for future career impacts or emotional distress, only for specific economic losses related to the lack of written notice about her hearing rights, which she did not prove.
Regarding retaliation under G. L. c. 151B, the facts suggest a reasonable jury could find that Dana-Farber did not renew the plaintiff's appointment due to retaliatory motives linked to her discrimination lawsuit. She received warnings from STAMP team leaders about potential negative repercussions from her legal actions. Notably, after she escalated her complaint to Superior Court, she was informed that previously available clinical positions were no longer open to her, which could indicate Dana-Farber's intent to retaliate. Although the plaintiff continued her employment for several months after this, the implication of job insecurity was clear. Dana-Farber defended the decision to eliminate her position as part of broader cost-cutting measures impacting multiple employees unrelated to protected activities under G. L. c. 151B, citing funding cuts as the rationale.
The record indicates that in the hospital's cost-cutting measures, the plaintiff was uniquely affected as the only member of the STAMP team not to have their appointment renewed, with only one other employee at the same level being terminated. Dana-Farber's argument that the plaintiff did not experience adverse employment action related to alleged retaliation is unconvincing, as supported by the jury's findings. The plaintiff's evidence satisfies the causation standard for retaliation claims under Massachusetts General Law (G. L.) c. 151B.
The plaintiff also challenges the application of the statutory cap on tort liability for charitable entities under G. L. c. 231, § 85K, which limits liability to $20,000, arguing it should not apply to claims under G. L. c. 151B. The court has not previously addressed whether retaliatory conduct in employment falls under the scope of § 85K. Previous rulings established that § 85K does not limit damages under G. L. c. 93A or claims related to the Massachusetts wiretapping statute, as those statutes create rights not recognized under common law. The First Circuit has similarly ruled that § 85K does not restrict damages under G. L. c. 151B, aligning with the reasoning that this statute also establishes new rights.
The court concludes that § 85K does not apply to limit damages for unlawful retaliation claims under G. L. c. 151B, supported by legislative history and the statutes' language. Prior to the enactment of § 85K in 1971, nonprofit hospitals enjoyed charitable immunity from tort liability, which the statute abolished for tort actions, imposing a cap only when the tort was committed in pursuit of charitable purposes. The statute’s language restricts its application to specific circumstances where damages arise from acts performed to fulfill the charitable objectives of an organization.
The charitable cap on damages does not generally apply to statutory violations unless they qualify as a “tort” under the relevant statute. While there have been references to tort-like characteristics in discrimination claims under G. L. c. 151B, these claims are not classified as torts. G. L. c. 151B was created to provide remedies for workplace discrimination, and initially exempted charitable organizations from the definition of “employers.” However, this exemption was removed in 1969, making charitable organizations subject to the same provisions and remedies as other employers. Under G. L. c. 151B, it is unlawful for employers, including hospitals like Dana-Farber, to discriminate against individuals for filing complaints with the Massachusetts Commission Against Discrimination (MCAD).
The text argues that the charitable cap, which limits recovery for torts committed during charitable activities, should not apply to damages awarded under G. L. c. 151B. Consequently, the conclusion drawn is that a new trial is necessary to assess damages specifically related to the retaliation claim against Dana-Farber, as the jury did not differentiate damages among three claims and the judge noted that the damages were treated as equivalent. This lack of differentiation precludes understanding the damages awarded for the valid retaliation claim. Additionally, the jury ruled in favor of the plaintiff against Livingston for inducing Dana-Farber not to extend her employment.
The plaintiff claims that Livingston conducted an investigation into an overdose without consulting her about the events or the chemotherapy dose given to Lehman. He allegedly failed to correct Knox’s misidentification of the plaintiff as a countersigner of the overdose orders and confirmed to Knox that Dana-Farber was looking into a potential cover-up. Furthermore, Livingston initiated a corrective action investigation regarding the plaintiff’s performance but only informed her after issuing a press release on the matter. During the investigation, he reassigned the plaintiff to research and administrative duties and sent a letter to the committee arguing that an oral reprimand for the plaintiff was inadequate.
Livingston contends that the judgment against him is legally unfounded, stating that as Dana-Farber’s physician-in-chief, he fulfilled his professional duties by seeking a peer review investigation regarding the plaintiff’s failure to check for possible overdoses. He argues that being held liable for this action constitutes a miscarriage of justice.
The document addresses Livingston’s immunity under State law, specifically General Laws c. 111, § 203(a), which mandates hospitals to have procedures for reporting and investigating potentially harmful conduct. Section 203(c) provides immunity to individuals participating in peer review committees, as long as they act in good faith with a reasonable belief that their actions are warranted. However, this protection does not apply if bad faith is proven, which is central to the plaintiff’s claim of intentional interference.
To establish a claim of intentional interference with an employment relationship, the jury must find that (1) there was an advantageous employment relationship, (2) the defendant knew of this relationship, (3) the defendant's interference was intentional and improper in motive or means, and (4) the plaintiff suffered economic harm due to the defendant's actions. The focus is particularly on whether the interference was “improper in motive or means.”
The propriety of an actor's motives or conduct is context-dependent and must be assessed on a case-by-case basis. In cases involving claims of intentional interference by a supervisor with an employee's relationship with their employer, a supervisor is generally privileged to act unless motivated by actual malice. The court examined a situation where an assistant director of nursing was terminated for allegedly highlighting issues in patient care; it ruled that the termination was permissible unless executed with malevolent intent. The court did not reach a conclusion on whether the evidence sufficiently demonstrated that the supervisor acted with malice.
Furthermore, the defendant, Livingston, contended that the verdict against him was compromised by the improper admission of confidential peer review documents. The legal framework outlined in G.L. c. 111.203 mandates confidentiality for medical peer review proceedings, prohibiting the introduction of related records into evidence. This statutory privilege is designed to encourage open critique of medical care by protecting participants from subsequent legal repercussions. Despite efforts by Dana-Farber and Livingston to maintain the confidentiality of the peer review proceedings, their attempts to impound the case file were denied by the court.
Dana-Farber and Livingston sought a protective order to prevent the discovery of confidential medical peer review documents, which was denied without prejudice by the judge, a decision that was later upheld by an Appeals Court justice. They subsequently petitioned for relief under G. L. c. 211, but the petition was declined. When the protective order was renewed, it was again denied on the basis that Dana-Farber had waived confidentiality by sharing documents with the plaintiff. The plaintiff's claim against Livingston for intentional interference was based on his involvement in corrective action proceedings, detailed in two letters he authored: one requesting the initiation of proceedings due to concerns about the plaintiff's clinical competence, and another criticizing the committee's recommendation of an oral reprimand as insufficient.
Dana-Farber and Livingston attempted to exclude these letters from trial, but the trial judge denied their motion, allowing the letters as evidence despite ongoing objections. The plaintiff acknowledged the confidentiality of the corrective action and Sallan committee proceedings, asserting they were protected under G. L. c. 111. 204. The statute broadly defines "proceedings, reports, and records" of medical peer review committees, including information necessary for their work product. The court rejected the plaintiff's argument that Livingston’s July 12 letter was not part of the peer review proceedings. The bylaws of Dana-Farber’s medical staff outlined that the initiator of corrective action (Livingston) could respond to committee recommendations, establishing that both letters were integral to the peer review process and qualified for protection under the statute.
The court found that the admission of certain letters was erroneous and that, without them, the plaintiff's evidence against Livingston primarily highlighted his failure to investigate the plaintiff's account following overdoses, his decision to place her on administrative duty (which suspended her clinical privileges), and his lack of support during negative media coverage. This evidence suggested that Livingston was overly focused on the plaintiff's culpability but did not support an inference of deliberate malice or bad faith against her. The court referenced case law indicating that inferences drawn from evidence must be carefully evaluated and that allegations of bad faith cannot sustain a jury finding without substantial evidence.
In relation to the Globe defendants, the plaintiff sought to compel the disclosure of confidential sources used in articles that were central to her libel and privacy claims. The judge ruled that these identities were crucial to the case, denied the Globe defendants' protective order request, and ordered compliance, resulting in a civil contempt judgment and escalating monetary sanctions against the Globe defendants for non-compliance. The Appeals Court later vacated this judgment and remanded the case for further findings to justify sanctions. On remand, the plaintiff renewed her motion to compel the disclosure of the confidential sources.
A physician, who had previously informed Knox of the misidentification of the plaintiff as an overdose order countersigner, became a confidential source, allowing the plaintiff to pursue her libel claims without needing to know their identity. However, the plaintiff contended that knowing the identities of other confidential sources was essential for her claims against Knox for intentional infliction of emotional distress and against Dana-Farber for invasion of privacy and breach of the implied covenant of good faith and fair dealing. The judge conducted a balancing test and determined that the plaintiff's need for the information outweighed the public interest in protecting confidential sources, leading to an order on October 21, 1999, for the Globe defendants to disclose these identities.
When the Globe defendants continued to refuse disclosure, the plaintiff moved to compel Knox to answer an interrogatory. The judge granted this motion, ordering Knox to respond by June 10, 2000, which was formally entered on June 13, 2000. Knox and his Globe editor still declined to reveal their sources, prompting the plaintiff to file for sanctions under Mass. R. Civ. P. 37 (b)(2). The judge approved this motion, resulting in judgments of liability against the Globe defendants for all remaining claims.
The judge found the Globe defendants' noncompliance constituted contempt and a violation of court orders, justifying the imposition of sanctions as their previous monetary penalties had not secured compliance. He noted that the Globe's refusal to comply with discovery orders caused injustice to the plaintiff and that a default judgment alone would not adequately serve justice, as it could protect Dana-Farber and Livingston from liability. The judge characterized the Globe's actions as an unnecessary interruption in the free flow of information critical to the plaintiff's case.
The conduct of the Globe defendants may inadvertently support the interests of the hospital and its former CEO in the context of a reporter's treatment and death. The judge's ruling was within his discretion, as the overdose incidents had occurred six years prior, and there was no evidence that Knox continued to gather relevant information justifying the concealment of sources' identities. The judge determined that these identities were crucial to the plaintiff’s claims against Knox and Dana-Farber. Despite the jury's verdict favoring Dana-Farber and Livingston on the libel claim, the plaintiff’s assertions involved allegations of scapegoating by Dana-Farber officials and public censure by the Globe and Knox. The plaintiff had a right to know if Dana-Farber personnel had disclosed confidential information to the Globe, which could have strengthened her claims or introduced new ones. The Globe defendants' noncompliance with discovery orders prevented the plaintiff from pursuing joint and several liability against them. The judge had repeatedly ordered compliance and ultimately aimed to enable the plaintiff to obtain necessary information, not to punish the Globe defendants. The reviewing court found no abuse of discretion in the judge's order. At trial, the jury only needed to determine the amount of damages, if any, caused by the Globe defendants' conduct, with a general rule that jury awards should not be disturbed unless clearly excessive in relation to the evidence presented.
In Robertson v. Gaston Snow, the court emphasized the unique responsibilities of appellate judges in reviewing defamation verdicts due to constitutional concerns and the complexities of fair compensation. A successful plaintiff in a defamation case is entitled only to fair compensation for actual damages, including emotional distress and harm to reputation. The plaintiff alleged that the Globe defendants wrongfully spotlighted her, while the medical defendants, Dana-Farber and Livingston, improperly scapegoated her. The judge noted that damages against all defendants stemmed from parallel legal theories. The jury determined that joint and several liability did not apply, awarding $2,100,000 each against the Globe and medical defendants, with identical amounts for economic damages ($300,000) and emotional distress damages ($1,800,000). This equal apportionment of damages appeared intentional. Unlike the medical defendants, the Globe defendants were liable for all claims due to a default judgment. The jury received clear instructions on calculating compensatory damages based on evidence and ensuring damages were not duplicative or misattributed. The jury likely assessed damages in accordance with these instructions. Although the awarded damages for the Globe defendants seemed substantial, they were supported by evidence indicating that the Globe articles harmed the plaintiff's career and caused significant emotional distress, ultimately forcing her to accept a less desirable position in another state.
In June 1995, three months after the Globe published an article naming the plaintiff, a psychiatrist at Dana-Farber expressed concern for the plaintiff's mental health, suggesting she seek psychiatric help. Subsequently, the plaintiff received weekly treatment from Dr. Mary Ann Badaracco from August 1995 to September 1996. Dr. Badaracco diagnosed the plaintiff with an “adjustment disorder with depressive features,” exacerbated by the Globe articles that she viewed as unjust. Colleagues and a social worker corroborated her state of crisis, noting significant changes in her behavior, including depression, anxiety, weight gain, insomnia, and emotional breakdowns.
Expert testimony from Dr. Thomas G. Gutheil confirmed that the media coverage had a profound negative impact on the plaintiff's mental health, causing severe emotional distress and damaging her reputation, which he characterized as a fundamental loss to her identity. The judge upheld the awards given to the plaintiff, finding no excessive damages.
The amended judgment from October 15, 2003, was revised to hold Dana-Farber liable for retaliation under G. L. c. 151B, including attorney’s fees of $391,340.80 and costs of $27,284.85. The Globe defendants were found liable for all claims against them, ordered to pay $2,100,000 in damages and $8,959.84 in costs. A new trial was mandated to reassess damages against Dana-Farber, excluding the charitable cap in G. L. c. 231, § 85K. The jury had previously ruled in favor of the defendants on gender discrimination, defamation, and libel claims, which the plaintiff did not contest. A separate breach of contract claim against Dana-Farber regarding the implied covenant of good faith and fair dealing was submitted to the jury without objection. The plaintiff’s invasion of privacy claim against the Globe defendants was dismissed by motion, and the plaintiff did not appeal this dismissal. The Globe defendants appealed default judgments, but the appeal was struck as premature. Dana-Farber did not appeal the punitive damages award.
Almost $400,000 in attorney’s fees and costs were awarded to the plaintiff for her successful claim under G. L. c. 151B against Dana-Farber. Initially, a jury awarded damages jointly against Dana-Farber and Livingston, but the judge subsequently modified the judgment to hold Dana-Farber solely liable. The plaintiff's complaint describes a research protocol as potentially involving human experimentation, characterized as an experimental treatment plan. The STAMP team at Dana-Farber included several physicians, including the plaintiff. A misunderstanding occurred when Richardson responded affirmatively to a question about Lehman's potassium level, which the plaintiff misinterpreted as an answer regarding the administration of cyclophosphamide. The plaintiff did not disclose Bateman's adverse reaction at that time.
Sallan served as Dana-Farber's physician-in-chief until early May 1995, when Dr. Frederick P. Li succeeded him. The Globe published numerous articles concerning overdoses and healthcare quality, with Knox, who authored about twenty-seven articles, acknowledging that only six mentioned the plaintiff by name. He admitted to mistakenly interpreting medical records related to overdose orders and later published a correction. The plaintiff contested her role as attending physician during the trial but generally accepted the accuracy of Livingston's letter. Livingston resigned from his position following the tragic events, stating it was appropriate for someone in his role to step down.
Prosser outlines four types of conduct that can lead to an invasion of privacy claim, including public disclosure of private facts, which is pertinent to many cases under G. L. c. 214, § 1B. Notably, Massachusetts has not recognized false light invasion of privacy claims under this statute.
The jury may conclude that the Globe defendants were responsible for a violation of confidentiality, despite the plaintiff's argument that without specific identities of the Globe's confidential sources, she could not prove that Dana-Farber disclosed confidential peer review information to Knox. The judge agreed with the plaintiff, imposing default judgments against the Globe defendants. However, it remains uncertain whether the jury could hold Dana-Farber accountable for leaking information about the plaintiff's investigation by the board of registration, as Dana-Farber did publicly announce corrective action proceedings against two physicians without naming the plaintiff.
Dana-Farber's bylaws mandate confidentiality of certain internal proceedings. The plaintiff's counsel vaguely claimed that Dana-Farber breached the implied covenant of good faith and fair dealing by disclosing confidential information about the plaintiff, including the initiation of corrective action proceedings. The plaintiff further asserted that Livingston's comments suggested a cover-up, although there is no evidence to support this claim. The court notes that the plaintiff has not specifically argued that Dana-Farber's alleged breaches violated its bylaws, resulting in a waiver of that claim.
Additionally, the court rejects Dana-Farber's argument for judgment in its favor based on the plaintiff's failure to file a retaliation claim with the Massachusetts Commission Against Discrimination (MCAD). The plaintiff had already removed her discrimination claim to the Superior Court when notified of her non-reappointment and subsequently amended her complaint to include a retaliation charge, thus not requiring a second complaint to the MCAD.
The Massachusetts Tort Claims Act (G. L. c. 258) limits public employers' liability for negligent acts by employees to $100,000. In Jancey v. School Comm. of Everett, the court ruled that the Act does not cover wage discrimination claims, as such acts, regardless of intent, do not constitute torts. The inquiry into governmental tort liability must assess whether the conduct in question is genuinely tortious. A violation of G. L. c. 151B is not considered a tort under G. L. c. 231.85K, negating the need to evaluate whether the conduct was within a corporation's charitable purpose. The plaintiff's claims of damages stem from alleged invasion of privacy and breach of good faith by Dana-Farber, with the retaliation claim linked to specific events at the trial's conclusion. The jury's total damages award lacks itemization, making it impossible to ascertain the portion attributable to retaliation. Livingston's immunity claim under the Health Care Quality Improvement Act (HCQIA) is deemed waived. Although he previously referenced HCQIA in a different context, the issue was not pursued further. At the time of the events, Livingston had resigned as the hospital's physician-in-chief, which may have affected his supervisory status but does not impact the resolution of the claims. No evidence supports a finding of bad faith or exceptions to statutory immunity regarding peer review documents under G. L. c. 111.
Dana-Farber's decision to share certain peer review documents with the plaintiff does not waive the statutory prohibition on their use in trial against Livingston, as established in Miller v. Milton Hosp. Med. Ctr. Inc. The peer review privilege is designed to promote open discussions about medical care quality, unlike the attorney-client privilege, which is based on confidentiality between parties. Courts have narrowly interpreted exceptions to this privilege to prevent the use of peer review records in legal proceedings. Waiving confidentiality in peer review communications would undermine the statute's purpose, discouraging physicians from providing candid feedback if their statements could later be used against them in litigation.
The plaintiff's claims that Livingston may have acted as a confidential informant or disclosed sensitive information regarding corrective actions lack substantial evidence and are deemed speculative. The Globe defendants sought interlocutory relief from a disclosure order, which was denied, and they later received partial summary judgment on the plaintiff's privacy claim. The judge sanctioned the Globe defendants under Mass. R. Civ. P. 37(b)(2) for failing to comply with previous orders, requiring them to pay reasonable attorney's fees incurred by the plaintiff. While the Globe defendants claimed they did not act in bad faith, they had no constitutional or statutory privilege justifying their non-compliance with the orders. Although First Amendment rights may provide some protection for reporters to keep sources confidential, courts require a clear demonstration that compelled discovery would harm the free flow of information, which was not sufficiently established in this case.
A balancing test was conducted to weigh the public interest in individual evidence against the need to protect the free flow of information. The judge determined that the plaintiff's need for information surpassed the public interest in protecting press freedom. The first disclosure order was issued in October 1999, followed by motions for summary judgment from the Globe defendants in November 1999. A second disclosure order was issued in June 2000. The judge appropriately prioritized the plaintiff's right to discovery over the pending summary judgment motions.
The jury likely assessed damages to fairly compensate the plaintiff for injuries caused by the defendants, determining that both the medical and Globe defendants were equally at fault but not jointly liable. The jury apportioned damages for economic loss and emotional distress evenly between the two groups. The Globe's claim that the $300,000 award for lost compensation and damage to the plaintiff’s business reputation was unjustified was rejected, as the judge had instructed the jury to attribute damages correctly to the responsible parties.
Testimony revealed that Knox visited the plaintiff's home, causing emotional distress. Evidence showed that the Globe's correction of a false statement regarding the plaintiff was published late, which the judge allowed the jury to consider in mitigating damages. The Globe's argument that the evidence suggested punitive damages was unfounded. The plaintiff is entitled to additional attorney’s fees and costs related to her successful appeal under G. L. c. 151B, and she must submit a fee application within fourteen days of this court's rescript, allowing Dana-Farber thirty days to respond. The court affirmed default judgments against the Globe defendants, mandating reimbursement of $27,781.70 for attorney's fees, costs, and expenses related to compliance with previous discovery orders.
