ALBERT ALEXANDER v. BAYSTATE HEALTH INC (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff brought a claim in the Superior Court for unlawful retaliation in violation of the whistleblower statute, G. L. c. 149, § 187, alleging that the medical staff executive committee of defendant Baystate Medical Center, Inc. (Baystate) initiated medical peer review proceedings and recommended corrective actions against him as retaliation for engaging in protected whistleblowing activity. Finding that the plaintiff failed to prove retaliation, the jury reached a verdict in favor of Baystate. On appeal, the plaintiff argues that the medical peer review privilege articulated in G. L. c. 111, §§ 204 (a), 205 (b) should not be applied to claims under the healthcare whistleblower act “when the purported conduct of the healthcare provider does not relate to patient care.” The plaintiff also challenges three discovery and pretrial rulings: the motion judge's partial denial of the plaintiff's motion to compel responses to discovery (motion to compel), dated August 28, 2023; the trial judge's allowance of Baystate's motion for a protective order, dated May 30, 2024; and the trial judge's ruling on Baystate's motion in limine to exclude evidence precluded by the medical peer review privilege (motion to exclude). The plaintiff requests that these orders be reversed and the matter remanded for a new jury trial. For the following reasons, we affirm.

Discussion. For the first time on appeal, the plaintiff argues that there is an inherent conflict between the public policies underlying whistleblower protections and peer review confidentiality, and that application of the privilege by Massachusetts courts to whistleblower claims creates a forum problem because Federal courts decline to apply our State privilege outside of medical malpractice suits. Because the plaintiff failed to raise these arguments in the Superior Court, they are waived and are not subject to our review. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). The plaintiff further contends that there was sufficient evidence to determine that the peer review process was not conducted in good faith, see Pardo v. General Hosp. Corp., 446 Mass. 1, 10-11 (2006) (peer review privilege can only be invaded on some threshold showing that member of a medical peer review committee did not act in good faith); and that “no review of any purportedly protected documents was performed” after determining that the peer review privilege applied.

“It is the appellant's responsibility to ensure that the record is adequate for appellate review” (citation omitted). Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018). See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). Here, the plaintiff has not provided us with a copy of his motion to compel or Baystate's motion for a protective order, nor has he provided us with the parties’ memoranda in support of those motions, leaving us unable to review the substance of the requests and the arguments presented to the judges. “Generally, his failure to do so is fatal to his appeal” from the rulings on these motions. Roby, supra, quoting Chokel v. Genzyme Corp., 449 Mass. 272, 280 (2007) (“because the [motion] does not appear in the record appendix, we do not review the propriety of its denial”). Furthermore, we do not know what claims were before the judges when they ruled on these motions because the plaintiff has not included his original or amended complaints in the record appendix. Without an adequate record, we are unable to review the propriety of their rulings. See Margaret v. Zaleskas, 97 Mass. App. Ct. 55, 72 (2020) (discovery rulings reviewed for abuse of discretion).

In response to Baystate's motion to exclude, the plaintiff argued that Baystate's motion was “premature” and that Baystate “utilize[d] purported[ ] peer review matters in defending this matter” while “attempt[ing] to prevent [the plaintiff] from utilizing purported peer review materials.” The plaintiff no longer advances these arguments on appeal, instead raising new arguments that were never presented to the trial judge. Accordingly, the plaintiff has waived his challenge to the ruling on the motion to exclude. See Carey, 446 Mass. at 285.

In any event, the plaintiff has failed to demonstrate that he was prejudiced by the claimed errors. See G. L. c. 231, § 119 (errors are not grounds for disturbing any judgment or order or granting new trial absent showing “that the error complained of has injuriously affected the substantial rights of the parties”). The plaintiff makes only a conclusory assertion that his “inability ․ to obtain [protected] documents makes it difficult if not impossible to sustain his burden of proof on retaliation.” However, the plaintiff has failed to substantiate this claim with citations to the record, and he has again failed to provide us with a record appendix adequate to evaluate his argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019); Mass. R. A. P. 18 (a).

Of the six days of jury trial, the plaintiff has provided a transcript of only one excerpt of the final day. This single excerpt does not demonstrate any attempt to elicit evidence of retaliation.³ See Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995) (“An appellant's obligation to include those parts of the trial transcript ․ which are essential for review of the issues raised on appeal ․ is a fundamental and long-standing rule of appellate civil practice” [quotation and citation omitted]). Mass. R. A. P. 18 (b) (4), as appearing in 481 Mass. 1637 (2019). Thus, even assuming that the peer review privilege was erroneously applied, the plaintiff has not shown that such error prejudiced his ability “to sustain his burden of proof on retaliation.”

Judgment affirmed.⁴

FOOTNOTES

3.   Baystate has provided us with some additional trial excerpts in a supplemental appendix, but they do not help the plaintiff's cause.

4.   In light of our disposition, we do not reach Baystate's cross-appeal asserting that the trial judge erred in ruling that the immunity provided by G. L. c. 111, § 203 (c), did not apply to Baystate.