Courts Divided–Application of Medical Peer Review Privilege in FTCA Cases

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.