Francisco S. Pardo vs. The General Hospital Corporation & another
Case Details
- Citation
- 446 Mass. 1
- Procedural Posture — the stage the case had reached
- jury verdict
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Jury verdict in favor of the hospital on claims of sexual-orientation discrimination and retaliation. The court affirmed, holding that the hospital did not abuse its discretion in denying discovery of peer-review documents, admitting certain evidence, and instructing the jury on retaliation.
Excerpt
Francisco S. Pardo vs. The General Hospital Corporation & another. Middlesex. October 3, 2005. January 26, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ. Anti-Discrimination Law, Sex. Employment, Retaliation. Practice, Civil, Discovery, Instructions to jury. Privileged Communication. Doctor, Employment. Hospital, Peer review, Appointment to staff. Evidence, Hearsay, State of mind. In a civil action alleging that the defendant hospital discriminated against the plaintiff, a doctor employed at the hospital, on the basis of his sexual orientation, the judge correctly denied the plaintiff’s request for discovery of certain privileged medical peer review documents, where the plaintiff failed to establish that a member of the medical peer review committee had not acted in good faith in connection with his or her activities as a member of the committee. [8-17] In a civil action alleging that the defendant hospital discriminated against the plaintiff, a doctor employed at the hospital, on the basis of his sexual orientation, the judge did not abuse her discretion in admitting in evidence certain documents and testimony concerning their contents, where the documents demonstrated notice and knowledge on the part of a supervising doctor within the hospital, and where the documents and related testimony were admissible under the state of mind exception to the hearsay rule as pertaining directly to the hospital’s lawful, nondiscriminatory reasons for its employment decisions concerning the plaintiff. [17-19] In a civil action alleging that the defendant hospital discriminated against the plaintiff, a doctor employed at the hospital, on the basis of his sexual orientation and retaliated against him when he complained about the discrimination, the judge did not abuse her discretion in declining a request to instruct the jury that the nearness in time between protected activity and adverse action would permit an inference of retaliation, where there was sharply conflicting evidence regarding the sequence and timing of events, where the plaintiff was not precluded from arguing retaliation in his closing argument, and where the judge instructed the jury about their role in determining the credibility of witnesses and the inferences that the jury might draw from circumstantial evidence on both the discrimination and retaliation claims [19-21]; moreover, in responding to a jury question about an element of the retaliation claim, the judge properly determined that the jury should decide whether, in this particular case, the plaintiff’s filing of a charge with the Massachusetts Commission Against Discrimination was reasonable [21-23], Civil action commenced in the Superior Court Department on May 4, 1998. A motion to compel discovery was heard by Wendie /. Gershengom, J., and the case was tried before her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ellen J. Zucker (Paul R. Cirel with her) for the plaintiff. Frank E. Reardon (James J. Horgan with him) for the defendants. Doing business as Massachusetts General Hospital. Partners Healthcare System, Inc. Marshall, C.J. 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 judge erred in (1) denying the plaintiff discovery of certain documents the hospital claimed were privileged under G. L. c. Ill, § 204, the medical peer review privilege; (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 (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. The hospital also proffered substantial evidence of the plaintiffs 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. 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 laboratory; 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. 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. 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”; “[rjecord 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. Further reductions in the plaintiff’s privileges and responsibilities followed. Dr. Suit met with the executive committee of the department in late June, 1995. 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, and voted unanimously to recommend that the plaintiff be reappointed for a six-month period without clinical privileges. 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. 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 plaintiffs clinical privileges nunc pro tune for the period January to June, 1996. The plaintiff filed suit against the hospital and others 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. Ill, § 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 warranted. See G. L. c. 111, § 204 (b). See also G. L. c. 111, § 203 (c). The judge properly resolved the question in favor of the hospital. In a discrimination action alleging disparate treatment, obtaining comparative information about an employer’s treatment of similarly situated employees is often critical to the plaintiff’s case. See, e.g., Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997), citing Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 228 (1978) (“The most probative means of establishing that the plaintiff s termination was a pretext for . . . discrimination is to demonstrate that similarly situated . . . employees were treated differently”). Here, the plaintiff requested “all documents” relating to patient care deficiencies by other members of the department’s medical staff and the discipline of such staff, as well as “[a]ll documents” relating to other physicians denied clinical and research privileges or reappointment “from 1986 to the present.” In response to the hospital’s invocation of the medical peer review privilege, the plaintiff cited the statutory exception to the privilege, arguing that the privilege yielded to any allegation of “bad faith,” in particular, any allegation of discriminatory conduct. After multiple submissions by the parties concerning the plaintiff’s motion to compel, which the judge addressed with admirable attention to detail, see Carr v. Howard, 426 Mass 514, 529 (1998), she ordered the hospital to produce a significant amount of the requested information, but denied the plaintiff’s motion to the extent it requested documents she concluded were covered by the medical peer review privilege. The judge was correct to rule as she did. The Legislature has mandated that the medical profession regulate the quality of patient care by identifying and remedying instances of substandard care at least in part through internal medical peer review proceedings. See, e.g., G. L. c. 111, § 203 (a), (d). See also Carr v. Howard, supra at 517-518 (discussing history and purpose of medical peer review process). To that end, the Legislature enacted the medical peer review privilege, insulating from discovery certain material submitted to or produced by a medical peer review committee, G. L. c. 111, §§ 203-204, inserted by St. 1986, c. 351, § 9, a privilege not recognized at common law. See Cronin v. Strayer, supra at 535 (common-law privilege not recognized for records of impaired physician committee of Massachusetts Medical Society). The obvious purpose of the statutory medical peer review privilege is to “promote candor and confidentiality” in the peer review process, Carr v. Howard, supra at 518, and “to foster aggressive critiquing of medical care by the provider’s peers,” Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172, 182 (1987). See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 396 (2005) (“Physicians would be far less willing candidly to report, testify about, and investigate concerns of patient safety if their actions would be subject to later scrutiny and possible litigation”). The Legislature provided a single, narrow exception to the privilege “to establish” that a member of a peer review committee did not act “in good faith and in the reasonable belief that based on all of the facts the action or inaction on his part was warranted” during the peer review process. See G. L. c. 111, § 204 (b); G. L. c. 231, § 85N. Neither the language of the statute nor its legislative history elucidates the precise boundaries the Legislature sought to establish when abrogating the immunity from discovery in certain cases. Taking into account the compelling public policy the privilege was established to advance, we conclude that the privilege can only be invaded on some threshold showing that a member of a medical peer review committee did not act in good faith in connection with his activities as a member of the committee, for example did not provide the medical peer review committee with a full and honest disclosure of all of the relevant circumstances, but sought to mislead the committee in some manner., The focus must be on the committee member’s actions within the peer review committee process itself, not on possible discriminatory reasons for initiating a review of the plaintiff’s work. Cf. Birbiglia v. Saint Vincent Hosp., Inc., 427 Mass. 80, 84-86 (1998) (no evidence warranting finding of “bad faith” in medical peer review process where plaintiff made no attempt to demonstrate what allegedly biased and knowingly false evidence hospital relied on, and where plaintiff did not point to specific evidence tending to prove that hospital’s executive committee or board knew that any evidence was biased or knowingly false). See Doe v. St. Joseph’s Hosp. of Fort Wayne, 42 Empl. Prac. Dec. (CCH) par. 36,973 (N.D. Ind. 1987) (in discrimination case, to overcome medical peer review privilege plaintiff must “allege facts which create more than a mere inference that the actions of the peer review committee were discriminatory, before the court will permit even an in camera inspection of the communications to, records of or determination of the peer review committee”). Here, Dr. Suit’s concerns about the plaintiff’s performance were initially triggered in substantial part by the complaint received from Dr. Hartford. His concerns were heightened when he received Dr. Thornton’s comprehensive letter outlining numerous performance shortcomings of the plaintiff. There is no allegation by the plaintiff that either Dr. Hartford or Dr. Thornton harbored any animus toward him. Their respective written complaints to Dr. Suit would give rise to the gravest concern of any supervising physician. Patients receiving treatment in the department are extremely ill, subjected to life-threatening treatments. Had the express concerns of Dr. Hartford and Dr. Thornton not been acted on, and had the scrutiny of the plaintiff’s work not intensified, Dr. Suit could well have been viewed as derelict in his duties. In Massachusetts, as elsewhere, medical peer review is not a choice, but a legislative requirement. See G. L. c. Ill, § 203. No physician is at liberty to avoid that mandate. Even assuming that Dr. Suit had treated the plaintiff “differently” in some respect because he is homosexual (by recommending to the GEC that the plaintiff’s privileges be limited rather than merely reporting his concerns to the GEC, for example), the plaintiff has not pointed to evidence that discriminatory animus rather than a legitimate concern for patient care infected the actual medical peer review process. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 399 (2005) (evidence did not warrant inference that supervising physician’s “misplaced focus” on plaintiff was “deliberate, or motivated by a ‘spiteful, malignant purpose’ to hurt the plaintiff that was unrelated to [supervising physician’s] professional responsibilities” [citations omitted]). We emphasize that, in the face of the hospital’s opposition to the plaintiff’s broad discovery requests, the judge ordered the hospital to produce substantial discovery. The plaintiff reviewed, among other items, the written materials that triggered Dr. Suit’s concerns; the promotional files for o
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