All 50 states have adopted a statutory evidentiary privilege that protects from compelled disclosure materials generated as part of the medical peer review process. But federal law applies in federal court cases premised on federal-question jurisdiction, and a significant question arises whether healthcare providers receive similar peer-review protections under federal law.
In his excellent article, Odd Man Out? The Medical Peer Review Privilege in Federal Litigation, The Federal Lawyer, at 52 (Dec. 2013), Major Charles G. Kels reviews the current state of federal peer-review privilege law. Major Kels notes that federal statutory protections provide little protection and that three federal circuit courts of appeals and a majority of federal district courts refuse to recognize a federal common law peer-review privilege. And an alternative privilege, the self-critical analysis privilege, produces an “inherently uncertain venture.”
Major Kels provides practical tips for navigating these undefined privilege waters and advocates for congressional action or the adoption of a federal common law privilege. Major Kels’ article is comprehensive and commended to in-house and outside counsel representing health care providers.
You may access the article here. My thanks to Major Charles Kels and The Federal Lawyer for permission to repost the article in this blog.
A Texas appellate court upheld a physician’s peer review privilege claim by finding that a physician society’s grievance committee fell within Texas’ statutory definition of a “medical peer review committee.” The court’s opinion contradicts decisions in other states by broadly interpreting the state’s peer review statute. In re Higby, 2013 WL 4080716 (Tex. Ct. App. Aug. 13, 2013).
Higby presents an interesting fact pattern arising from a defamation action between two opposing medical expert witnesses. Dr. Kenneth Higby is a maternal-fetal medicine specialist and Dr. Halbridge is an OBGYN. Both are fellows in the American College of Obstetrics and Gynecology (ACOG). In an underlying medical malpractice case involving a neurological injury to an infant, Higby provided an expert opinion for the defense and Halbridge provided an expert opinion for the plaintiff.
After the case settled, Higby filed a complaint with ACOG’s Grievance Committee claiming that Halbridge made false statements in his expert reports. Halbridge responded with a defamation action against Higby and sought to discover Higby’s statements to the Grievance Committee. The question before the court was whether the ACOG—a professional society—was a “medical peer review committee.” If so, then the peer review privilege protects from discovery Higby’s statements to the committee.
Tex. Health & Safety Code Ann. § 161.0315(a) provides that “medical peer review” includes evaluation of “professional conduct.” And § 151.002(a) states that a “medical peer review committee” includes a committee of a “health care entity” authorized to evaluate the quality of health care services, physicians’ “professional conduct,” and “the competence of physicians.” This statute also defines “health care entity” to include a “professional society or association of physicians.”
The key here is that Higby’s statements did not concern the quality of Halbridge’s provision of medical care to a patient, but rather the quality of his expert opinions. The court determined that Texas’s peer review statute covers statements made to committees that evaluate a physician’s competency and that Higby “essentially challenges Halbridge’s competence to render an expert opinion.” Because the ACOG Grievance Committee evaluates professional conduct, it was a medical peer review committee under the statute and the peer review privilege protected Higby’s statements to the committee from discovery.
PoP Analysis. Courts tend to take a narrow view of medical peer review privilege. See this post, and this one, discussing example cases. But the Higby decision represents a broad interpretation for two reasons: first, the privilege covered a professional society committee rather than simply a hospital peer review committee; and, second, it covered statements made about a physician’s expert opinions developed for litigation rather than his provision of heath care services. While it is true that each state must interpret its own medical peer review statute, the Higby decision lends some support to those seeking a broad interpretation.
A Connecticut court rejected a peer-review privilege claim because a solo physician conducted the peer review rather than a “medical review committee.” And this ruling came despite the fact that the hospital’s bylaws defined “medical review committee” to include a single physician. Cox v. Reyes–D’Arcy, 2013 WL 2451303 (Conn. Super. Ct. May 15, 2013).
The Cox ruling represents an extremely narrow and strict reading of Connecticut’s peer review statute. That statute protects as privileged the proceedings of a “medical review committee conducting a peer review.” Conn. Gen. Stat. §19a–17b(d). And the statute defines “medical review committee” as including “a committee of any health care institution established pursuant to written bylaws.” Id.
Following allegations that a pathologist at a New London hospital failed to answer an urgent call to read a blood smear slide, the hospital’s Pathology Department Chair conducted a peer review investigation. The hospital’s bylaws provided that its medical review committee included a department chair acting in a peer review function. In subsequent litigation, the pathologist sought in discovery the peer review findings. The hospital objected citing Connecticut’ peer review privilege.
The court ruled that, as with any privilege claim, it must narrowly construe the peer review privilege statute. And in doing so, it defined the statute’s phrase “medical review committee” as a “group of people delegated to perform a particular task.” And because the Department Chair conducted the peer review solo, rather than as part of a “group,” the court held that no “medical review committee” existed to which the privilege applied.
This narrow interpretation came even though the statute defines a “medical review committee” as one established pursuant to hospital bylaws and the hospital here defined the committee as including a lone department chair. To this, the court found that the bylaws “overreach the privilege.”
PoP Analysis. Evidentiary privileges run counter to the maxim, first coined in 1742 by Lord Chancellor Hardwicke, that the public has a right to “every man’s evidence.” Thus, the Cox decision presents another example of courts narrowly construing evidentiary privileges. Knowing this tendency, the practical lesson here is that health care providers and institutions that engage in peer review proceedings must ensure that the bodies created to conduct the proceedings match precisely the peer-review statute’s wording. Perhaps it is time for a triage of your state’s peer review statute and your healthcare client’s peer review procedures?
An Illinois Appellate Court recently ruled that a physician’s post-operation comments to the Medical Affairs Diretor were not protected by the medical peer-review privilege. The Court issued this ruling despite the fact that the physician making the comments later participated in formal peer-review committee meetings. See Tunca v. Painter, 980 N.E.2d 1132 (Ill. App. Ct. 2012).
The peer-review privilege in Tunca arose in an atypical case-setting. Plaintiff Dr. Tunca, a surgeon specializing in gynecological oncology, cut a patient’s femoral artery during surgery to remove an ovarian tumor. Defendant Dr. Painter, a vascular surgeon, later repaired the cut by performing a femoral-femoral bypass. After the surgery, Dr. Painter informed the Medical Affairs Director that Dr. Tunca had negligently and inadvertently severed the patient’s artery during the first operation. Dr. Painter later made similar comments to other medical staff. These comments were made in June 2006, and the hospital’s peer-review committee reviewed the incident in February 2007.
Illinois’ peer-review statute provides that “all information, interviews, reports, statements,” etc. are “privileged and strictly confidential.” 735 Ill. Comp. Stat. 5/8-2101. Dr. Tunca sued Dr. Painter alleging that Painter’s comments were slanderous and violated Illinois’ peer-review statute. The appellate court, however, held that Dr. Painter’s post-operation comments were not protected by the peer-review statute. The court narrowly interpreted the statute to protect from compelled disclosure only those statements made while a committee is actually engaged in the peer-review process. Statements made before the peer-review process begins or after it ends fall outside the peer-review privilege.
The court reiterated that information obtained after a medical incident but before the peer-review process formally begins is not privileged; nor does this information transform into privileged material when it is later reported to a peer-review committee. Even statements made in anticipation of a peer-review process are not covered. Simply put, the peer-review privilege does not protect letters, emails, declarations, and statements made before the peer-review process formally begins.
PoP Analysis. Even though the Tunca case arose in a defamation setting, it contains lessons for in-house and outside counsel representing medical providers in malpractice settings. This case follows so many other decisions that narrowly interpret privilege rules and statutes. Physicians routinely discuss post-incident information for purposes of learning what occurred and preventing repeat incidents, which is the same goal as the peer-review process. Yet, these statements are not privileged unless made after formal institution of medical peer-review proceedings. Counsel should endeavor to train physicians and medical staff regarding how to handle post-incident comments and discussions. While not all states follow Illinois’ strict statutory construction, the Tunca case should serve as caution in all peer-review situations.
Medical malpractice cases brought in federal court under the Federal Tort Claims Act (FTCA) often raise issues regarding discovery of information generated in the context of the medical peer review process. While all 50 states recognize a medical peer review privilege, there is no federal common law peer review privilege.
But medical malpractice cases brought against the federal government under the FTCA pose unique problems. Because the FTCA is a basis for federal question jurisdiction, claims brought under this act in federal court will be subject to federal law on evidentiary privileges. See Menses v. U.S. Postal Serv., 942 F. Supp. 1320 (D. Nev. 1996). And following this conflict-of-laws rule, peer review information sought in a medical malpractice case brought under the FTCA would generally find no privilege protection under federal law. Some federal courts, however, stray from this general rule and apply state-law privileges in certain situations under the doctrine of comity.
The Illinois federal court’s decision in Sevilla v. United States, 852 F. Supp.2d 1057 (N.D. Ill. 2012), provides an informative illustration. In this medical malpractice case against a physician employed by the United States, the federal government asserted the peer review privilege found in Illinois’ Medical Studies Act to withhold from discovery information generated as part of the peer review process. The Court recognized that the majority of federal courts do not recognize a medical peer review privilege under the FTCA, but ultimately ruled that the government should be able to use Illinois’s peer review privilege in this medical malpractice case. The Court held that the Supreme Court’s rejection of a federal peer review privilege in Univ. of Pennsylvania v. EEOC, 493 U.S. 182 (1990), was limited to an academic peer review privilege. Instead, the Court followed the teaching of Jaffee v. Redmond, 518 U.S. 1 (1996), regarding criteria for recognizing new privileges, and found that recognizing a peer review privilege in the medical malpractice FTCA context met that criteria.
The Sevilla court limited its holding to application of the medical peer review privilege in medical malpractice cases filed under the FTCA, but the Court could have been clearer that it was applying the Illinois medical peer review as a matter of comity rather than adopting a federal common law peer review privilege. The Court failed to address that many courts, following Jaffee, have ruled that comity may not serve as a basis to recognize a state-law privilege in federal-question cases. See, e.g., Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998). But the Court’s decision shows that federal courts are divided on the issue, and whether the peer review privilege applies in FTCA medical malpractice cases depends on the federal jurisdiction in which the case is filed.