Each of the fifty states recognize some variation of medical peer-review privilege that protects from compelled disclosure certain defined information arising from a healthcare provider’s peer-review activities. Virmani v. Novant Health, Inc., 259 F.3d 284 (CA4 2001). The privilege encourages medical providers to hold candid discussions following an adverse medical event which, in turn, promotes continued medical-care improvement.
The privilege most often arises in medical-malpractice actions which plaintiffs typically file in state courts. But the privilege also surfaces in federal-court actions. For example, parties seek peer-review information in medical-malpractice actions filed under diversity jurisdiction. They may seek peer-review information in cases premised on federal-question jurisdiction, such as claims under federal anti-discrimination statutes or for insufficient medical care under 42 U.S.C. § 1983 or the Emergency Medical Treatment and Active Labor Act (EMTALA). These discovery efforts present a complex question—whether, and how, a peer-review privilege applies when the issue presents itself in federal court.
Choice of Law Issues
Highly consequential yet often ignored, the first question in applying a peer-review privilege in federal court is whether federal or state privilege law applies. In general, Federal Rule of Evidence 501 dictates that federal privilege law applies when the federal court entertains the civil action under federal-question jurisdiction, 28 U.S.C. § 1331, and state privilege law—as governed by the forum state’s conflict-of-privilege-law rules—applies when the court considers the case under diversity jurisdiction. 28 U.S.C. § 1332. For a more detailed explanation of these issues, see 1-2 Privileges & Protections: TN & Sixth Circuit Law § 2.02 Conflicts of Privilege Laws in Federal Court (2024).
For current purposes, let’s focus on the peer-review privilege’s application when one files a claim against a healthcare provider in federal court based on federal-question jurisdiction and then seeks peer-review materials from that provider. Three questions arise.
Is There a Federal Common Law Peer-Review Privilege?
While a few federal district courts have applied a medical peer-review privilege under federal common law, such as Weekoty v. United States, 30 F. Supp. 2d 1343 (D.N.M 1998) and Bredice v. Doctors Hosp., 50 F.R.D. 249 (D.D.C. 1970), the majority of federal courts have refused to recognize a common-law peer review privilege, as discussed in this article and in this section of my privileges treatise. 1-11 Privileges & Protections: TN & Sixth Circuit Law § 11.05[5][a] Medical Peer-Review Privilege in Federal-Question Cases (2024)
Is There a Federal Statutory Peer-Review Privilege?
Two federal statutes provide healthcare providers with some hope of protection of peer-review materials. First, the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11101 to -11152, provides immunity to peer-review bodies and those participating in a peer-review process, but most courts refuse to find that this immunity equates to an evidentiary privilege. See Atteberry v. Longmont United Hosp., 221 F.R.D. 644 (D. Colo. 2004).
Second, the Patient Safety and Quality Improvement Act (PSQIA) creates a reporting system for healthcare providers to report adverse medical events to a designated Patient Safety Organization (PSO) and installs an evidentiary privilege for “patient safety work product” submitted to the PSO. 42 U.S.C. § 299b–21(7). The privilege is narrow, however, and requires detailed proof that the putatively privileged materials were evaluative and submitted to a PSO.
Do Comity Principles Ever Play a Role?
With no federal common-law privilege, no statutory privilege under the HCQIA, and a limited privilege under the PSQIA, some argue that a federal court should apply a state-law peer-review privilege under comity principles. And while some courts agree that comity supports applying a state peer-review privilege in federal-question cases, such as Mattice v. Mem’l Hosp. of S. Bend, 203 F.R.D. 381 (N.D. Ind. 2001) and LeMasters v. Christ Hosp., 791 F. Supp. 188 (S.D. Ohio 1991), the comity concept seems contrary to federal law requiring application of federal privilege law in federal-question cases.
Putting it all Together: A Case Study
So, how do these principles apply in practice? Judge Poplin’s opinion in Est. of McCleary v. QCHC of Tenn., PLLC, 2025 U.S. Dist. LEXIS 13275 (opinion also available here), provides a good illustration.
Joshua McCleary died in the ER of the Sweetwater Hospital Association (SWHA) after being transferred there from the Monroe County (TN) jail. His estate filed suit in federal court asserting constitutional claims through 42 U.S.C. § 1983 against the government defendants and a claim against SWHA under EMTALA, 42 U.S.C. § 1395dd. The Estate specifically invoked federal-question jurisdiction and did not assert any supplemental state-law claims, such as a medical-malpractice claim.
Discovery of Peer-Review Materials
The Estate sought SWHA’s peer-review materials related to McCleary’s treatment and addressed the peer-review privilege head-on with this cover email—
Undaunted, SWHA argued in response to the subsequent motion to compel that, while most federal courts disfavor applying a federal peer-review privilege, some courts distinguish between solely federal-question cases, such as claims under federal anti-discrimination statutes, and state-law medical malpractice claims.
Refusal to Recognize a Federal Common-Law Peer-Review Privilege
Judge Poplin began her privilege assessment by refusing to recognize a federal common-law peer-review privilege, noting in particular that the Supreme Court “has expressed reluctance to expand the parameters of privilege law in recent years” and that the “weight of authority in the Sixth Circuit and elsewhere is that no medical peer review privilege exists under federal common law.”
The judge recognized that some federal courts have applied state peer-review privileges when the case includes a state-law medical-malpractice claim, but refused SWHA’s invitation to treat the EMTALA claim as a state-law medical-malpractice claim for privilege purposes.
No Proof to Support a Patient Safety Work Product Claim
The PSQIA statute offered SWHA a final opportunity to secure peer-review protection, but the court rejected that as well. The judge noted that, to secure PSQIA protection, a healthcare provider must prove (1) that the putatively privileged document was created for the purpose of reporting to a PSO and (2) was “so reported.” SWHA lacked any evidence supporting either prong, leading the judge to easily conclude that the PSQIA offered no privilege protection.