Burke v. General Hospital Corp., 091619 MASUP, 1784CV02876

Docket Nº:1784CV02876
Opinion Judge:ROSEMARY CONNOLLY, Associate Justice of the Superior Court
Party Name:Dennis W. BURKE, M.D. v. The GENERAL HOSPITAL CORP. dba Massachusetts General Hospital et al.[1]
Case Date:September 16, 2019
Court:Superior Court of Massachusetts
 
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Dennis W. BURKE, M.D.

v.

The GENERAL HOSPITAL CORP. dba Massachusetts General Hospital et al.1

No. 1784CV02876

Superior Court of Massachusetts, Suffolk

September 16, 2019

File Date: September 20, 2019

OPINION

ROSEMARY CONNOLLY, Associate Justice of the Superior Court

Plaintiff claims, inter alia, that the defendants wrongfully terminated his employment and privileges at Massachusetts General Hospital ("MGH") in retaliation for his whistleblowing about a surgical practice he found to be objectionable known as "concurrent surgery," or "double booking," or "overlapping, surgeries." This matter now comes before the court on Plaintiff’s Motion for Reconsideration of the court’s earlier discovery order that the Defendants shall produce a redacted version of the report known as the "Stern Report."2 The redactions were to prevent the disclosure of items, or sections, of the report for which the Defendants claimed either attorney client privilege or asserted peer review. The Plaintiff now seeks the court to reconsider its previous order, for the discovery of a redacted version of the report, and now order the Defendants to produce the Stern Report in its entirety, unredacted. Plaintiff argues that Defendants failed to meet their burden to establish any valid privilege, and moreover, the Defendants have waived any privilege.3 After careful review of the parties’ voluminous submissions, and after hearing the parties’ spirited oral arguments the court ALLOWS the Plaintiff’s Limited Motion for Reconsideration as explained below.

PERTINENT PROCEDURAL HISTORY

Previously, on May 3, 2019, the court issued its decision and order on the Plaintiff’s Motion to Compel Defendants to produce the Stern Report, investigative report concerning the issue of concurrent surgeries at MGH. (#40.) The Plaintiff’s motion to compel was allowed in part and denied in part. The court allowed so much of the motion to compel that required the Defendants to produce a redacted version of the Stern Report, redacted for attorney-client privilege and peer review materials, and then to produce the rest of the report in a redacted form. The court concluded that Defendants’ claim of work product failed because, based on the record presented to the court, and the chronology, the Stern Report, released in 2011, was not prepared in anticipation of this 2017 litigation or any litigation.4 See Decision and Order on Plaintiff’s Motion to Compel Production of Documents Relating to Donald Stern’s Investigation of Concurrent Surgery at MGH pg. 17-20.

The court denied so much of the Plaintiff’s Motion to Compel as required the production of the portions that had been redacted as attorney-client privilege and medical peer review because the court found that at that time it did not have sufficient information from which it could render any decision as to the appropriateness of the claimed privilege.5 Now before the court is the Plaintiff’s Limited Motion for Reconsideration. After conducting additional discovery, the Plaintiff now seeks to offer additional support for its claim that Attorney Donald Stern and his firm were not hired to provide legal advice to MGH, nor to conduct peer review and further, because MGH provided unredacted versions of the report to third persons, including their communications firm, Rasky Baerlein Strategic Communications, Inc. ("Rasky"), and so any claim of privilege has been waived.

DECISION

The court makes these factual findings in support of its decision to ALLOW the Plaintiff’s Limited Motion for Reconsideration.

It bears repeating that discovery of the Stern Report is relevant to this litigation on the issue of animus concerning the Defendants’ termination of Dr. Burke and the Defendants’ public statements about Dr. Burke made about the time of his dismissal in 2015. The Defendants’ claims of attorney client privilege, and peer review, to protect portions of the Stern Report, must give way when confronted with the facts. The court concludes that the Defendants’ arguments are ex post facto rationalizations to shield this report from Dr. Burke’s scrutiny as he seeks to prove that his termination was in retaliation for his alleged whistleblowing activity.

The court ALLOWS Plaintiff’s Motion and orders that the Stern Report should be produced, in its entirety, in an unredacted form, along with any and all versions of the Stern Report and all of the underlying investigative materials reviewed or developed by Mr. Stern and his team that are within the Defendants’ care, custody or control.6 There are two primary reasons for the court’s decision.

First, as detailed in the court’s previous decision, the Stern engagement letter and the Stern Report’s overview belies the Defendants’ claim that Stern and his team were hired to provide, in part, legal advice. This conclusion is corroborated by testimony of Cathy Minehan, Chair of MGH’s Board of Trustee. She testified at her deposition that she prompted the initial engagement of Mr. Stern.[7] She viewed Donald Stern as an independent investigator, and not part of the legal team. See Plaintiff’s Supplemental Brief in Support of His Motion for Limited Reconsideration Relating to the Stern Investigation into the Practice of Concurrent Surgeries at MGH pg 2 -3 and Ex. A. ("Supplemental Brief" filed August 28, 2019.) The court’s finding that the proposed redacted sections of the Stern Report are not protected by the attorney client privilege is further corroborated by a review of the Defendants’ privilege log. Like the clue derived from the dog that does not bark, in examining the privilege log, what one does not find are any communications between Stern and MGH’s legal counsel either just before or just after the Stern report was issued.

Notwithstanding, the court previously took a conservative approach, subject to further development by the parties, and permitted the...

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