Ayash v. Dana-Farber Cancer Institute, DANA-FARBER

• Decision Date: 26 February 1999
• Docket Number: No. 98-P-1663,DANA-FARBER,98-P-1663
• Citation: 706 N.E.2d 316,46 Mass.App.Ct. 384
• Parties: Lois AYASH v.CANCER INSTITUTE & others. 1 Suffolk
• Court: Appeals Court of Massachusetts

Page 316

706 N.E.2d 316

46 Mass.App.Ct. 384

Lois AYASH v. DANA-FARBER CANCER INSTITUTE & others. ¹ No. 98-P-1663.

Appeals Court of Massachusetts,

Suffolk.

Argued Oct. 15, 1998.

Decided Feb. 26, 1999.

Jonathan M. Albano, Boston (Mark W. Batten & Shaun B. Spencer with him) for Globe Newspaper Company & another.

Joan A. Lukey, Boston (Gabrielle Wolohojian with her) for the plaintiff.

Geoffrey R. Bok, Boston (Kay H. Hodge with him), for Dana-Farber Cancer Institute & another, were present but did not argue.

Present: WARNER, C.J., GREENBERG, & BECK, JJ.

WARNER, C.J.

Richard A. Knox, a Boston Globe medical reporter, and the Globe Newspaper Company, publisher of The Boston Globe, collectively "the Globe defendants," appeal from a judgment of civil contempt for violating a Superior Court order to disclose Knox's confidential sources regarding a series of articles published in The Boston Globe (Globe). The series concerned accidental chemotherapy overdoses administered to Globe columnist Betsy Lehman and to another patient, Maureen Bateman. We vacate both the order of February 23, 1998, compelling the disclosure of confidential sources and denying the Globe defendants' motion for a protective order, and the order of August 13, 1998, imposing sanctions for civil contempt, and remand for further proceedings in the Superior Court.

The events underlying the Globe series were as follows. Lehman and Bateman were patients on an experimental breast cancer treatment protocol (protocol) at the Dana-Farber Cancer Institute (Dana-Farber). The protocol involved the administration of high doses of the drug cyclophosphamide. The plaintiff, Dr. Lois Ayash, a physician at Dana-Farber, was protocol chair and principal investigator for the protocol. In mid-November, 1994, a physician on Lehman and Bateman's clinical treatment team erroneously administered a fourfold overdose of the drug. Lehman died on December 3, 1994, as a result of the error. ² Bateman suffered severe toxicity, but survived. ³

It was not until February, 1995, that a data manager at Dana-Farber discovered that the overdoses had been administered. Dana-Farber then suspended the clinical privileges of two physicians who had been directly involved in the patients' care when the overdoses were given. No action was taken against Ayash at that time. On March 31, 1995, Ayash's clinical privileges were suspended and she was assigned to administrative duty. She became the subject of two Dana-Farber internal investigations and an investigation by the Massachusetts Board of Registration in Medicine (board of registration).

The Globe published the first of Knox's articles concerning these events on March 23, 1995. In that initial article, Knox made two statements which Ayash contends are defamatory. First, he erroneously identified her as one of the doctors who had countersigned the mistaken order. Second, he identified her as the "leader of the team," which, Ayash contends, wrongly implied that she had direct patient care responsibilities for Lehman and Bateman when the overdoses were administered. On February 1, 1996, Ayash brought suit against the Globe defendants for libel and for breach of confidentiality and privacy ⁴; against Knox; against Dana-Farber; and against David M. Livingston, M.D. ⁵

Knox concedes that he was told within four days of publication that Ayash did not countersign the overdose orders. ⁶ Ayash energetically sought, and Knox refused to disclose, the identity of the source who had informed him of his mistake. That source has now been identified as Karen Antman, a former physician at Dana-Farber. The disclosure occurred on August 18, 1998, after the Superior Court judge had issued the orders under appeal. ⁷ Knox no longer seeks to maintain confidentiality with regard to Antman.

According to her brief on appeal, Ayash continues to seek the identities of Knox's sources who disclosed the following information which, she asserts, should have been kept confidential: (1) the information that Ayash was the subject of a Dana-Farber internal "corrective action" investigation; (2) the information that Ayash was the subject of an investigation by the board of registration; and (3) documents provided to Knox concerning recommendations made by Dana-Farber's internal peer review committee and Dana-Farber's responses. ⁸

Upon Knox's refusal during discovery to provide any information which would lead to the disclosure of his confidential sources' identities, Ayash moved to compel disclosure. The Globe defendants moved for a protective order. On February 23, 1998, the Superior Court judge granted Ayash's motion and denied the Globe defendants' motions.

A single justice of this court denied the Globe defendants' petition, pursuant to G.L. c. 231, § 118, first par., seeking reversal of or leave to take an interlocutory appeal from the Superior Court judge's orders. ⁹ As Knox persevered in his refusal to reveal his confidential sources, the Superior Court judge issued a contempt order and imposed monetary sanctions on Knox and the Globe on August 13, 1998. Knox was ordered to pay a fine of one hundred dollars per day beginning August 24, 1998, the amount to escalate by one hundred dollars per day each successive week that he failed to comply with the discovery order. The Globe was fined one thousand dollars per day beginning August 24, 1998, the amount to escalate by one thousand dollars per day each successive week that it refused to comply with the discovery order. A single justice of this court ordered a stay of execution on the contempt judgment pending an expedited appeal.

On August 28, 1998, the Globe defendants moved in Superior Court for reconsideration of the discovery and sanction orders as a result of the August 18, 1998, disclosure of Karen Antman's identity. The record before us indicates that the motion is pending. We will nevertheless proceed with our review in the interests of expediting this appeal.

"The validity of an underlying discovery order, disobedience of which has led to an adjudication of contempt, may be challenged on appeal from the adjudication of contempt." Matter of Roche, 381 Mass. 624, 625 n. 1, 411 N.E.2d 466 (1980). We now review the rulings of the Superior Court judge denying a protective order and granting the motion to compel in order to determine whether they constituted an abuse of discretion. See Sinnott v. Boston Retirement Bd., 402 Mass. 581, 585-586, 524 N.E.2d 100, cert. denied, 488 U.S. 980, 109 S.Ct. 528, 102 L.Ed.2d 560 (1988).

No constitutional or statutory privilege or rule of court protects news reporters' sources of information. As the Superior Court judge stated in his memorandum of decision ordering disclosure of Knox's sources, there is no constitutionally based privilege protecting news reporters' sources of information. Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 598, 574 N.E.2d 373 (1991), and cases cited. Nor is there any statutory privilege or rule of court providing for such a privilege. Id. Nevertheless, "[i]t is well settled that, in supervising discovery, a presiding judge is 'obliged to consider the effect that compelled discovery would have on "the values protected by the First Amendment, [even] though [these values were] entitled to no constitutional privilege." ' Matter of Roche, supra at 636, 411 N.E.2d 466, quoting Herbert v. Lando, 441 U.S. 153, 180, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (Powell, J., concurring). The 'needless disclosure of confidential relationships,' Matter of Roche, supra at 637, 411 N.E.2d 466, is, therefore, to be avoided." Sinnott v. Boston Retirement Bd., 402 Mass. at 586, 524 N.E.2d 100.

Developing common law protection for news reporters' confidential sources of information. In 1985 the Supreme Judicial Court refused to adopt rules which would provide for an evidentiary privilege for news reporters' sources of information, advocating instead a common law approach as "more likely to result in principles that are flexible enough to maintain an appropriate balance between the competing interests involved...." Petition for the Promulgation of Rules Regarding the Protection of Confidential News Sources & Other Unpublished Information (hereafter Petition for Promulgation of Rules ), 395 Mass. 164, 171, 479 N.E.2d 154 (1985). The court there stated that under common-law principles already developed, a party seeking to avoid disclosure must first "make some showing that the asserted damage to the free flow of information is more than speculative or theoretical." Id. at 172, 479 N.E.2d 154, citing Matter of Roche, 381 Mass. at 635, 411 N.E.2d 466, and Matter of Pappas, 358 Mass. 604, 612, 266 N.E.2d 297 (1971), aff'd. sub nom. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Only then will the court go on to balance "the public interest in every person's evidence and the public interest in protecting the free flow of information," in order to determine whether disclosure should be prevented. 395 Mass. at 172, 479 N.E.2d 154, citing Commonwealth v. Corsetti, 387 Mass. 1, 5-6, 438 N.E.2d 805 (1982).

The evidence required to make "some showing" of a risk to the free flow of information. The Supreme Judicial Court has not discussed in detail the nature and extent of evidence required to make "some showing" that disclosure poses a risk to the free flow of information. In Petition for Promulgation of Rules, it stated that there is no privilege for information that has already been published. 395 Mass. at 172, 479 N.E.2d 154, citing Commonwealth v. Corsetti, 387 Mass. at 4-5, 438 N.E.2d 805. In an earlier case, the court intimated that the bald allegation that disclosure of a news reporter's confidential sources will impede the free flow of information would not be enough to satisfy this burden. See Matter of Pappas, 358 Mass. at 612, 266 N.E.2d 297.

The two most recent Supreme Judicial Court cases concerning this matter, ...