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.
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.
The Nemours Foundation
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