Appeals court hears arguments over medical peer review privilege in physician whistleblower case
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Summary
A three-justice panel heard arguments over whether the medical peer review privilege can be pierced in healthcare whistleblower suits where alleged retaliatory discipline does not implicate patient care; both sides urged existing precedent; the court took the matter under advisement.
Chief Justice Amy Blake and the two-justice panel heard 15-minute arguments in Albert Alexander, MD v. Baystate Health Inc., where appellant counsel Tanya Saperstein asked the court to narrow application of the 1986 medical peer review privilege so whistleblowers can obtain documents needed to prove retaliatory discipline. Saperstein said the privilege has been applied “wholesale” to bar discovery and that in this case the underlying facts do not involve patient care or malpractice, leaving no way to prove retaliation without access to peer-review materials.
Defense counsel (identified in argument as Attorney Zuckerman) told the court that Massachusetts precedent favors a robust peer review privilege and that published cases such as Vranos, Pardo and Brannos counsel caution against broad exceptions. He noted the jury found Dr. Alexander engaged in protected conduct but did not find causation, and argued the record contained evidence supporting the peer review process and the lower-court rulings denying disclosure.
Justices pressed both sides on close questions in the case law: when and how a trial judge should conduct in camera review, the narrow “lack of good faith” exception recognized in prior decisions, and whether the trial court’s pretrial rulings deprived the appellant of a fair opportunity to develop evidence of retaliation. Counsel debated whether the trial judge’s denial of a motion to compel and protective orders prejudiced the appellant’s ability to present causation at trial.
Saperstein pointed to trial-court findings cited in the addendum that she said indicated an absence of good faith in the peer-review proceedings (for example, that complaining parties were not identified or called), and urged the appellate court to order in camera review or redaction rather than blanket protection. Zuckerman responded that the record and jury verdict supported the peer review process as having legitimate patient-care concerns.
The panel took the case under advisement. The court did not announce a decision from the bench.
