Doctor can take Beth Israel to court

SJC says she has right to sue despite arbitration clause

By Robert Weisman
Globe Staff / July 28, 2009

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The state’s highest court yesterday ruled that a doctor fired as head of anesthesiology at Beth Israel Deaconess Medical Center can proceed with a sex discrimination lawsuit in court, rebuffing the Boston hospital’s contention the case should be heard by an arbitrator.

Because an employment agreement between Beth Israel Deaconess and plaintiff Carol Warfield didn’t explicitly cite gender discrimination as an issue to be decided by arbitration, she has the right to a court trial, the Massachusetts Supreme Judicial Court ruled.

The case could have implications for other employees who have signed contracts with arbitration causes, according to the ruling. “Parties seeking to provide for arbitration of statutory discrimination claims must, at a minimum, state clearly and specifically that such claims are covered by the contract’s arbitration clause,’’ the court said.

Warfield, who was dismissed as anesthesiologist-in-chief in 2007, filed her suit the following March. She is seeking millions of dollars in damages from the hospital, its president Paul Levy, and Dr. Josef E. Fischer, who was asked to resign as chief of surgery in June 2008 because of what the hospital termed an inappropriate management style.

In her suit, filed in Suffolk Superior Court, Warfield alleged she had endured years of abusive and demeaning treatment by Fischer. For example, she alleges he let the door shut on her when she followed him into a room, turned his back to her at meetings, and replied to a male colleague when she spoke to him. After she complained to Levy, the lawsuit said, Warfield was demoted as department chairwoman.

Beth Israel Deaconess argued that because Warfield’s contract with the hospital included an arbitration clause, her complaint should be resolved through arbitration. But the court rejected that claim, referring to a ruling in another case this month that said Massachusetts had a strong interest in preserving the rights of residents to seek redress for grievances through the courts.

“Our client is heartened by the decision,’’ said Ellen Zucker, partner at the Boston law firm of Burns & Levinson, which represents Warfield. “When she signed that contract, she surely did not believe she was giving up the full range of rights anyone in the Commonwealth has if they confront discrimination or retaliation’’ in the workplace.

Judy Glasser, senior vice president of communications at Beth Israel Deaconess, said yesterday’s decision didn’t address the issues in the case. “The court ruled about where the case could be heard, in arbitration or in court,’’ Glasser said. “It didn’t address the substance of the case.’’

Noting that Levy has frequently cited the virtue of transparency, Laura Studen, cochair of the litigation department at Burns & Levinson, said, “The reality is that Mr. Transparency has been trying to keep the lid on this case.’’ Studen suggested the “open vetting’’ of Warfield’s case will produce evidence embarrassing to Levy and Beth Israel Deaconess.

A lawyer for Fischer released a statement contending arbitration would have been a better forum for the case.

"We are disappointed in the ruling because arbitration is the appropriate forum for this case in our opinion," said Dick Glovsky, partner in the Boston law firm Prince, Lobel, Glovsky & Tye. "Further, allegations in this type of case are often unfounded and making them all part of the public domain unfairly does serious damage to a person's reputation without benefit of a trial. That said, we now look forward to proceeding with the litigation and going to trial. We are confident Dr. Fischer will prevail."

Robert Weisman can be reached at

The print version of this story has been appended online to include a comment from Dick Glovsky, the attorney representing Dr. Josef E. Fischer.