Doctor wins point in Milton Hospital suit: Appeals court rules he can use disputed letter

April 18, 2002

By Sue Reinert (The Patriot Ledger)

The state Appeals Court has rejected an attempt by Milton Hospital to withhold evidence in a legal dispute with a former emergency room doctor.

The ruling, issued Friday, rejected the hospital’s argument that a crucial letter in the case was confidential because it was part of a “peer review.”

Peer review involves doctors evaluating the performance of their colleagues. The secrecy of peer review, guaranteed by state law, is considered a sacred principle by the medical profession and malpractice insurers.

The Milton Hospital decision imposes new restrictions on the secrecy privilege and will prompt other hospitals to change their procedures, a malpractice expert said.

Milton Hospital invoked the protection after Dr. Steven Miller sued the hospital and its chief of surgery in 1993.

Miller, former chief of the hospital’s emergency department, claimed he was terminated in 1991 because he refused to send all emergency room patients who needed surgical follow-up to hospital surgeons.

Then-chief of surgery Amitahba Ghosh-Roy insisted on exclusive referrals because he wanted the fees, the lawsuit alleged.

The hospital and Roy have denied the allegations.

The suit was dismissed in 1998 after a Norfolk Superior Court judge ruled the hospital could withhold a letter from Roy to hospital President George Geary.

The letter, which was included in the Appeals Court ruling, outlined the dispute over referrals and said the surgeons might stop providing backup care in the emergency room if Miller didn’t yield.

The hospital argued that the letter should remain secret because it described the result of a joint meeting of the surgical and emergency departments. Those departments are responsible for performing peer review, the hospital asserted.

The Appeals Court disagreed, saying it wasn’t clear that the meeting involved “quality-of-care” issues. Hospital departments that perform peer review also decide administrative and economic matters, so the hospital could not claim confidentiality for all department actions, the court said.

Michael Kelly, executive director of the Professional Liability Foundation, a coalition of insurers, hospitals and doctors that works to reduce malpractice suits, said hospital departments often “are charged with multiple functions.”

The Milton Hospital decision means “they have to make it clear whenever they meet which hat they’re wearing,” Kelly said. “It’s going to be an important issue not just to Milton Hospital but to all hospitals.”

The decision sends the case back to Norfolk Superior Court. No hearing date has been set, said Miller’s Boston attorney, Stephen Lyons.

“Hospitals have in the past abused the peer review privilege and often attempted to hide misconduct by simply calling it peer review when it wasn’t,” Lyons said.

“There’s nothing in that letter that talks about how to deliver better care to people. It’s all about the surgeons getting 100 percent of follow-up, and that’s fees,” Lyons said.

Milton Hospital Vice President Robert Duncan said the hospital will present more evidence to bolster its claim when the case is reheard.

Miller and other emergency physicians he recruited began working at the hospital in 1986, his suit said. Roy began demanding 100 percent of referrals soon after he was named chief of surgery in 1987, the suit said.

It said emergency doctors referred most patients who needed after-care to hospital surgeons, but some were seen twice by emergency room physicians if they requested it or if they needed treatment on weekends, when surgeons closed their offices, the suit said.

The hospital terminated Miller in 1991.

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