Pardo v. General Hosp. Corp.
| Citation | 446 Mass. 1,841 N.E.2d 692 |
| Parties | Francisco S. PARDO v. The GENERAL HOSPITAL CORPORATION<SMALL><SUP>1</SUP></SMALL> & another.<SMALL><SUP>2</SUP></SMALL> |
| Decision Date | 26 January 2006 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Ellen J. Zucker, Boston (Paul R. Cirel with her) for the plaintiff.
Frank E. Reardon, Boston (James J. Horgan with him) for the defendants.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.
The plaintiff, Dr. Francisco S. Pardo, a radiation oncologist, appeals from a jury verdict in favor of the defendants, The General Hospital Corporation and Partners HealthCare System, Inc. (collectively the hospital), his former employer, on claims that he was discriminated against on the basis of his sexual orientation and that the hospital retaliated against him when he complained about the discrimination. See G.L. c. 151B, § 4(1), (4), and (4A). At issue is whether the judge3 erred in (1) denying the plaintiff discovery of certain documents the hospital claimed were privileged under G.L. c. 111, § 204, the medical peer review privilege4; (2) admitting in evidence certain documents that the plaintiff contends were inadmissible because they contained hearsay statements, and permitting testimony concerning them; and (3) instructing the jury on his retaliation claim. We transferred the case here on our own motion. For the reasons we discuss below, we affirm the judgment.
1. Background. We summarize the facts as the jury could have found them, see Mitchell v. Silverstein, 320 Mass. 524, 525, 70 N.E.2d 306 (1946), identifying conflicting evidence where relevant.
Briefly stated, the plaintiff alleged that his career was derailed after he revealed his homosexuality to Dr. Herman D. Suit, at all relevant times chief of the hospital's department of radiation oncology (department). The hospital countered with evidence that Dr. Suit had supported the advancement of the plaintiff's career after the disclosure, as well as evidence that the department in general and Dr. Suit in particular had a history of recruiting, employing, and supporting homosexual employees.5 The hospital also proffered substantial evidence of the plaintiff's neglect in the performance of his duties and other substandard behavior. We describe the evidence in greater detail because it informs in particular our discussion of the medical peer review privilege.
In 1986 the plaintiff joined the department, beginning a three-year residency. Dividing his time between clinical and laboratory work, the plaintiff successfully completed his residency in 1989, receiving an award for excellence. Dr. Suit invited the plaintiff to remain on staff as a fellow for one year, during which time the plaintiff, with the support of Dr. Suit, received several competitive grants for research. In 1990, Dr. Suit recommended that the plaintiff join the medical staff of the department and be appointed an instructor at Harvard Medical School. Within two years the plaintiff had published several articles in academic publications. Dr. Suit agreed to increase the amount of clinical work undertaken by the plaintiff.
During his residency and fellowship years, the plaintiff did not disclose his sexual orientation to Dr. Suit or to other senior members of the hospital staff. In the spring of 1993, the plaintiff learned that his longtime partner was ill with acquired immune deficiency syndrome (AIDS). In October, 1993, the plaintiff informed Dr. Suit that he is "gay," that his partner had AIDS, and that he might need to take some time off to care for his partner.
After this discussion, the plaintiff continued to advance in his career and Dr. Suit continued to support him. In the summer of 1994, Dr. Suit recommended the plaintiff for promotions at the hospital and at Harvard Medical School. Dr. Suit also recommended the plaintiff for further grant funding for his research.6 The promotion at the hospital was approved, and the plaintiff received the funding for his research from the National Cancer Institute. Dr. Suit continued to provide the plaintiff with salary support and additional office space to facilitate his work.
Sometime thereafter difficulties arose between Dr. Suit and the plaintiff. The jury learned that, in January, 1995, Dr. Suit reprimanded the plaintiff for removing certain laboratory research data books from Dr. Suit's laboratory7; he ordered the plaintiff not to enter the laboratory without his permission. In March, 1995, Dr. Suit informed the plaintiff that he was placing his academic promotion on hold.8 Shortly thereafter, Dr. Suit became concerned about the plaintiff's clinical teaching and patient care activities for the reasons we next discuss.
In April, 1995, Dr. Alan Hartford, a medical resident in the department, submitted a five-page memorandum to Dr. Suit (Hartford memorandum), in which he detailed numerous incidents over the course of the preceding three months to the effect that the plaintiff had not provided adequate supervision and training of residents.9 After receiving the Hartford memorandum, Dr. Suit spoke with Dr. Allan Thornton, who took care of the plaintiff's patients in his absence and who therefore interacted with some of the medical residents who worked with the plaintiff. In response, Dr. Thornton wrote a detailed letter (Thornton letter) discussing various shortcomings of the plaintiff. Dr. Thornton noted numerous areas of concern including "[p]age availability," describing the plaintiff as "difficult to reach either by page or telephone"; "[c]linic accessibility," describing the plaintiff's repeated unavailability at the department's clinic, creating particular difficulties for new patients; the plaintiff's repeated failure to comply with certain protocols, which Dr. Thornton described as "an embarrassment to our group," which could "not continue"; "[r]ecord keeping," in which Dr. Thornton said he "rarely [found] any notation in the charts of [the plaintiff's] patients by [the plaintiff] himself," even though these were "extremely ill patients requiring careful monitoring"; and the plaintiff's history of obtaining "inadequate and spurious" consents by patients, which, said Dr. Thornton, would negatively affect any "litigation." Dr. Thornton also described with concern that patient care was "left to the resident" and that the plaintiff was "rarely in attendance" at departmental conferences.
In late May, 1995, Dr. Suit informed the plaintiff that he was removing him from teaching and supervising residents, and would cease assigning residents to the plaintiff effective July 1, 1995.10 Further reductions in the plaintiff's privileges and responsibilities followed. Dr. Suit met with the executive committee of the department in late June, 1995.11 The committee concluded it would no longer commit to funding the plaintiff's salary for his research beyond the next two years. In August, 1995, Dr. Suit removed the plaintiff from participating in an experimental radiation project because, as he testified, the plaintiff had failed to follow certain procedures concerning the use of an experimental machine to irradiate brain tumors.
On August 17, 1995, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). The following month, a dispute arose in the department concerning the plaintiff's choice of treatment for one of his patients. While the plaintiff was on vacation, Dr. Suit and the department's clinical director changed the treatment plan ordered by the plaintiff. The clinical director and the plaintiff later disagreed over how the change had been handled. Dr. Suit recommended that the plaintiff discuss the matter with the hospital's chief medical officer, Dr. Peter Slavin. Based on a discussion with Dr. Slavin in late November, 1995, Dr. Suit came to believe that the plaintiff had lied about approvals he claimed to have secured before he had chosen the treatment plan. There was other evidence of what the hospital characterizes as the plaintiff's "truthfulness, clinical judgment and interpersonal interactions" that ultimately resulted in Dr. Suit's recommendation that the plaintiff's clinical privileges be limited.
Dr. Suit testified that in light of his escalating concerns, in December, 1995, he recommended that the plaintiff's reappointment to the medical staff be limited to six months, and that his clinical work be supervised. The hospital's general executive committee (GEC) considered Dr Suit's recommendation in January, 1996,12 and voted unanimously to recommend that the plaintiff be reappointed for a six-month period without clinical privileges.13 The hospital's board of trustees (board) adopted the recommendation on January 19, 1996. The plaintiff appealed from the decision to a staff review committee.14 In June, 1996, when his temporary reappointment expired, the plaintiff's employment was terminated.
In February, 1998, after a hearing, the staff review committee recommended that the board reverse its decision with respect to the plaintiff's clinical privileges. The staff review committee upheld the board's decision denying the plaintiff's application for reappointment in July, 1996. The board restored the plaintiff's clinical privileges nunc pro tunc for the period January to June, 1996. The plaintiff filed suit against the hospital and others15 in May, 1998.
2. The medical peer review privilege. The plaintiff challenges the judge's pretrial order denying his request for the discovery of certain documents the hospital claimed were privileged under the medical peer review statute, G.L. c. 111, § 204 (a), because, he asserts, his allegations of "bad faith" on the part of Dr. Suit, Dr. Slavin, and the clinical director triggered the statutory exception to the privilege. The exception permits discovery of medical peer review materials where a committee member did not act "in good faith" and "in the reasonable belief" that his actions were...
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