Excellent Article on (lack of) Federal Medical Peer Review Privilege 1

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.

Indoctor peer review 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.

One comment

  1. I haven’t read the article on lack of Federal Medical Peer Review Privilege, but I wonder if it is OBE (overcome by events). We now have the federal Patient Safety Work Product privilege under the Patient Safety & Quality Improvement Act of 2005. See the final rule at FR Vol 73 No 22670732. This privilege is just recently beginning to be addressed by courts around the country.

    Raymond J. Kreichelt, Esq.
    Senior Counsel
    The Nemours Foundation
    904.697.4241 (w)
    904.697.4290 (f)
    rkreiche@nemours.org
    NOTICE: This electronic transmission is intended only for the person(s) named. It may contain information that is (i) proprietary to the sender, and/or (ii) privileged, confidential and/or otherwise exempt from disclosure under attorney-client privilege and applicable State and Federal law, including, but not limited to the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Patient Safety and Quality Improvement Act of 2005. Receipt by anyone other than the named recipient(s) is not a waiver of any applicable privilege, confidentiality or exemption from disclosure. If you received this communication in error, please notify the sender immediately by reply e-mail message and permanently delete the original message from your system and do not retain any copies, whether in electronic or physical form otherwise.

    Like

Comments are closed.