A judge has ordered Massachusetts General Hospital to release a secret 2011 report written by a lawyer whom the hospital hired to investigate its practice of letting some surgeons oversee more than one operation at a time.
Suffolk Superior Court Judge Rosemary Connolly said that — pending a possible appeal — the hospital must share an unredacted copy of the report with an orthopedic surgeon fired by Mass. General in 2015 after he complained about concurrent surgeries.
The practice was the focus of a Globe Spotlight Team series.
Connolly stayed her ruling in Dr. Dennis Burke’s wrongful-termination suit against Mass. General, to let the hospital request a state Appeals Court hearing. It’s uncertain whether the Appeals Court will weigh in on the matter.
Burke, who now practices at Beth Israel Deaconess Hospital in Milton, worked for Mass. General for 35 years until he was dismissed in August 2015. The hospital said he was fired for improperly releasing patient records, with names redacted, to the Globe. Burke contends he was sacked because he blew the whistle on what he considered a serious patient-safety issue.
In 2011, the hospital hired a former US attorney, Donald Stern, to investigate Burke’s complaints to Mass. General officials about concurrent surgeries, also known as double-booking. The hospital never made the report public, but Dr. Peter Slavin, the hospital’s president, told the Globe in 2015 that Stern “found no basis to support Dr. Burke’s concerns.”
Burke’s attorneys have repeatedly requested the report. But Mass. General’s lawyers have insisted it contains legal advice from Stern to the hospital and is protected by attorney-client privilege.
The judge rejected that argument. She said Mass. General hired Stern to conduct an internal review, not to provide legal advice. She also noted that the hospital shared the report with a public relations firm, Rasky Baerlein Strategic Communications, which it hired to respond to the Globe’s inquiries.
And, the judge wrote, the hospital allowed the report to be stored on a computer server at Simmons College, which employed a dean who headed Mass. General’s Board of Trustees.
“MGH has used the report as both sword and shield,” Connolly wrote.
“The mounting evidence all leads to the conclusion that even if sections of the Stern report were once privileged, they no longer are,” she continued.
In addition to ordering the hospital to turn over the report, the judge directed it to provide all drafts of the document and backup materials.
Ellen J. Zucker, Burke’s lead counsel, was pleased. “In the end, based on MGH’s own words and conduct, this is not a close call,” Zucker said.
A hospital spokeswoman declined to comment.
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