Arrowood LLP Scores Legal Victory Over Peer Review Privilege


Arrowood LLP was recently handed a legal victory when, in the first Massachusetts state court decision of its kind, a Suffolk Superior Court judge ruled that the peer review privilege does not bar the admissibility of materials from an internal disciplinary proceeding against a doctor who is suing a health care system for retaliating against him.

The case involves Dr. Stephen Zappala who has brought state whistleblower, defamation and Chapter 93A claims against Steward Health Care System. Dr. Zappala is represented by Arrowood LLP attorneys Lisa G. Arrowood, William F. McGonigle and Sarah E. A. Sousa.

Dr. Zappala, a urologist with a practice in Andover, MA, was also affiliated with Holy Family Hospital in Methuen, MA. When Steward Health Care System purchased the hospital, the company instituted new policies, including an out-of-network referral practice, which Dr. Zappala considered to improperly impede upon patient choice and physicians’ independent professional judgment and caused a risk to public health.

Dr. Zappala alleges that Steward retaliated against him for objecting to and refusing to comply with its referral practice and for raising concerns about quality of care. One such retaliation was a sham disciplinary action which involved a peer review and resulted in the doctor losing his privileges at Holy Family.

Steward, who argued that Dr. Zappala’s claims are subject to peer review privilege, recently moved for summary judgment, and involved the Massachusetts peer review statutes in an attempt to both strike certain evidence from the Court’s consideration or otherwise dismiss Dr. Zappala’s claims.

The Court, reviewing the evidence, denied both efforts and found that the one exception to the peer review privileged applied. Specifically, the Court found that Dr. Zappala had made a threshold showing that the peer review was not conducted in good faith. The judge also found that whether Steward and other named defendants were entitled to immunity under the federal Healthcare Quality Improvement Act or state peer review statute were questions for a jury.

Commenting on the decision, Lisa Arrowood said, “This is the first Massachusetts state court decision to order a case to trial over a genuine issue of material fact as to whether a peer review proceeding was brought in good faith.”

William McGonigle added, “This opinion will likely become the road map followed by other plaintiffs to follow suit, allowing more doctors to shed light on the problems plaguing the health care system and preventing patients from getting the care they deserve.”

Read the Massachusetts Lawyers Weekly article about the ruling here.