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Ayash v. Dana-Farber Cancer Institute2/26/1999
Suffolk.
October 15, 1998.
News Reporter. Privileged Communication. Evidence, Privileged communication. Constitutional Law, Freedom of speech and press.
Civil action commenced in the Superior Court Department on February 1, 1996.
Motions to compel the disclosure of confidential sources, for a protective order, and to impose sanctions for civil contempt were heard by Peter M. Lauriat, J.
Richard A. Knox, a Boston Globe medical reporter, and the Globe Newspaper Company, publisher of The Boston Globe, collectively "the Globe defendants," appeal from a judgment of civil contempt for violating a Superior Court order to disclose Knox's confidential sources regarding a series of articles published in The Boston Globe (Globe). The series concerned accidental chemotherapy overdoses administered to Globe columnist Betsy Lehman and to another patient, Maureen Bateman. We vacate both the order of February 23, 1998, compelling the disclosure of confidential sources and denying the Globe defendants' motion for a protective order, and the order of August 13, 1998, imposing sanctions for civil contempt, and remand for further proceedings in the Superior Court.
The events underlying the Globe series were as follows. Lehman and Bateman were patients on an experimental breast cancer treatment protocol (protocol) at the Dana-Farber Cancer Institute (Dana-Farber). The protocol involved the administration of high doses of the drug cyclophosphamide. The plaintiff, Dr. Lois Ayash, a physician at Dana-Farber, was protocol chair and principal investigator for the protocol. In mid-November, 1994, a physician on Lehman and Bateman's clinical treatment team erroneously administered a fourfold overdose of the drug. Lehman died on December 3, 1994, as a result of the error. Bateman suffered severe toxicity, but survived.
It was not until February, 1995, that a data manager at Dana-Farber discovered that the overdoses had been administered. Dana-Farber then suspended the clinical privileges of two physicians who had been directly involved in the patients' care when the overdoses were given. No action was taken against Ayash at that time. On March 31, 1995, Ayash's clinical privileges were suspended and she was assigned to administrative duty. She became the subject of two Dana-Farber internal investigations and an investigation by the Massachusetts Board of Registration in Medicine (board of registration).
The Globe published the first of Knox's articles concerning these events on March 23, 1995. In that initial article, Knox made two statements which Ayash contends are defamatory. First, he erroneously identified her as one of the doctors who had countersigned the mistaken order. Second, he identified her as the "leader of the team," which, Ayash contends, wrongly implied that she had direct patient care responsibilities for Lehman and Bateman when the overdoses were administered. On February 1, 1996, Ayash brought suit against the Globe defendants for libel and for breach of confidentiality and privacy; against Knox; against Dana-Farber; and against David M. Livingston, M.D.
Knox concedes that he was told within four days of publication that Ayash did not countersign the overdose orders. Ayash energetically sought, and Knox refused to disclose, the identity of the source who had informed him of his mistake. That source has now been identified as Karen Antman, a former physician at Dana-Farber. The disclosure occurred on August 18, 1998, after the Superior Court Judge had issued the orders under appeal. Knox no longer seeks to maintain confidentiality with regard to Antman.
According to her brief on appeal, Ay
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