When assessing whether to renew or grant physicians staff privileges, hospitals rely on a variety of information.  However, there are certain types of information which may not properly be considered when assessing the issue of staff privileges.  For example, the Supreme Judicial Court of Massachusetts recently held that the St. Vincent’s Hospital violated the state’s wiretap statute when it evaluated a memorandum of a secret tape recorded conversation of a neurologist who was re-applying for staff privileges and the Chief of Medicine. 

                In Birbiglia v. Saint Vincent’s Hospital, a physician, who was denied full staff privileges based in part upon a secretly tape recorded conversation he once had with the Chief of Medicine, brought a lawsuit against the hospital for violating the wiretap statute.  Dr. Birbiglia was a neurologist who had been on St. Vincent Hospital’s active staff since 1972.  In March, 1988, he submitted an application for re-appointment to Executive Committee of the hospital’s medical staff.  Before the application was acted upon, Dr. Elliot Marcus, the head of the Neurology Department submitted a recommendation to the Executive Committee that Dr. Birbiglia be denied full staff privileges.  Instead, Dr. Marcus recommended that Dr. Birbiglia be placed on the hospital’s courtesy staff.  Although a physician on the courtesy staff is entitled to the same medical privileges, these physicians cannot vote, they cannot hold office on the Executive Committee, and they cannot be involved with the hospital’s teaching and departmental activities.  

                The Executive Committee voted to recommend the denial of all privileges to Dr. Birbiglia.  Dr. Birbiglia appealed the decision, and the Executive Committee held a hearing regarding the denial of privileges.  Dr. Marcus participated by supporting the Executive Committee’s decision to deny staff privileges.  After the hearing was conducted, the Executive Committee voted to modify its recommendation and to support Dr. Birbiglia’s appointment for courtesy privileges. 

                The Executive Committee then reported its recommendation to the Board.  On April 21, 1991, the Board conducted a hearing and recommended an appointment to the courtesy staff, but not the active staff, if Dr. Birgiglia agreed to adhere to certain conditions.  As part of its investigation, the Board looked at the evidence presented to the Executive Committee and two memorandums prepared in 1976 and 1977 by Dr. Gilbert E. Levinson, who had been Chief of Medicine at that time.  The memorandums at issue outlined two conversations between Dr. Birbiglia and Dr. Levinson.  In September 1990, Dr. Birbiglia claimed that the memorandum were the result of illegal tape recordings. 

                Dr. Birbiglia rejected his appointment to the courtesy staff and brought a civil action against the hospital, Dr. Marcus, Dr. Levinson and two other physicians.  Dr. Birbiglia claimed that the hospital and Dr. Marcus tortiously interfered with his advantageous business relations with physicians who referred patients to him at the hospital.  Dr. Birbiglia also claimed that the hospital breached his contract and violated the covenant of good faith and fair dealings.  Finally, Dr. Birbiglia claimed that the hospital violated the wiretap statute by relying on the memorandums prepared by Dr. Levinson when denying his request for privileges.

                The Massachusetts wiretap statute states that “any aggrieved person whose oral or wire communications were interecepted, disclosed or used except as permitted or authorized may bring an action against the person who intercepted, disclosed, or used such communications.”  An interception includes a secret recording. 

    The hospital claimed that there was no evidence that the Board knew that the recordings were the result of an unlawful interception.  However, the memorandums at issue had the appearance of a recorded transcription.  In addition, there was evidence that the senior vice-president of the hospital stated that he knew that the chief of medicine had tape recorded a conversation with Dr. Birbiglia.  

                At trial, the jury found that the hospital and Dr. Marcus tortiously interfered with advantageous relations.  Although the jury also found that the hospital breached its contract with Dr. Birbiglia and violated the covenant of good faith and fair dealing, they determined that Dr. Birbiglia did not suffer any damages as a result.  The jury decided that the hospital did violate the wiretap statute and awarded Dr. Birbiglia $500 in compensatory damages and $50,000 in punitive damages.   

                The judge entered judgment notwithstanding the jury’s verdict for the hospital and Dr. Marcus on the claims of tortious interference with advantageous relations and for the hospital on the claim of violation of the covenant of good faith and fair dealing.  The judge upheld the verdicts against the hospital for breach of contract and for violation of the wiretap statute.  However, pursuant to the charitable immunity statute, she reduced the award of damages to $20,000 plus attorneys fees. 

                On appeal, the court upheld the judge’s decision to enter judgment notwithstanding the verdict on the tortious interference and breach of the covenant of good faith claims based upon the fact that the plaintiff failed to show that he suffered any financial damages as a result of the defendant’s wrongful conduct.  Although the plaintiff claimed he suffered a decline in income, there was evidence that he closed his practice to move to Denver.  When he decided to stay in Massachusetts and  reopen his practice, Dr. Birbiglia made no formal announcement of the reopening.  The court also upheld the reduction in damages to $20,000 plus attorney’s fees. 

                In light of the Birbiglia case, hospitals should be aware of exactly what types of documents have been submitted when assessing a physician’s application for staff privileges.  In particular, the hospital should be aware of how the documents were created.  If transcriptions are submitted to a hospital’s credentialing committee, the committee should consider whether such tape recordings were ever authorized. 

    Granting Staff Privileges

    by Attorney Frank E. Reardon

    January 2000

    REARDON LAW OFFICE

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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