Monty Python, Sinatra, and Rejection of the Self-Critical Analysis Privilege 1

In a colorful and refreshingly thorough opinion by Judge Iain D. Johnston, the USDC NDIL—Western Division—refused to adopt the self-critical analysis privilege under federal common law.  While a handful of federal courts recognize the privilege, most either reject the privilege or determine that, “without deciding whether the privilege exists,” it does not apply to the facts of that particular case.

Judge Johnston’s opinion addresses the privilege head-on, and I recommend his opinion as the starting place for any lawyer’s research on (1) the legal analysis for recognizing new federal common-law privileges and (2) the national status of the self-critical analysis privilege.  Lund v. City of Rockford, Case No. 3-17-cv-50035 (N.D. Ill. Nov. 29, 2017).  You may read the decision here.

Set Up

The Rockford (Ill.) Police Dep’t arrested William Lund, but state prosecutors later dismissed the charges.  Lund filed an Internal Discipline Complaint over the incident, and the RPD investigated the arrest and prepared an 88-page report.

During discovery in Lund’s subsequent § 1983 civil action against the City of Rockford, the City produced a redacted version of the report.  Lund moved to compel an unredacted copy, and the City asserted that the self-critical analysis privilege protected the full report from discovery.

What is the Self-Critical Analysis Privilege?

The self-critical analysis privilege (SCAP), sometimes called the self-evaluative or self-investigation privilege, generally protects confidential assessments, evaluations, investigations, or audits designed to improve a company’s processes.  The concept is that, More…

Federal PSQIA Privilege Preempts State Peer-Review Privilege

In an area where there is “a dearth of case law,” the New Mexico USDC has ruled that the peer-review privilege contained in the federal Patient Safety and Quality Improvement Act preempts any state peer-review privilege. The preemption is limited to “patient safety work product” submitted to a certified Patient Safety Organization that a state peer-review privilege does not otherwise protect.  Quimbey v. Cmty. Health Sys. Prof’l Servs. Corp., 2016 WL 8716224 (D.N.M. Oct. 20, 2016).  You may read the decision here.

PSQIA

The Patient Safety and Quality Improvement Act, “a federal overlay to state peer-review statutes,” creates a voluntary reporting system for healthcare providers to share information on adverse medical events to a certified Patient Safety Organization (PSO).  The goal, of course, is to improve the quality of patient care.

The Act, codified at 42 U.S.C. §§ 299b–21 to 299b–26 and available here, creates an evidentiary privilege for “patient safety work product,” which is information that a provider develops for and reports to a PSO.  42 U.S.C. § 299b–21(7)(A).  The privilege prevents disclosure of patient safety work product in any federal, state, or administrative proceeding.  Id. § 299b–22. More…

Court Rejects Crime–Fraud Exception for Peer-Review Privilege

The South Dakota Supreme Court has issued yet another first-impression privilege ruling.  You will recall that, in Wipf v. Altstiel, 2016 WL 7411290 (S.D. Dec. 21, 2016), the court, in a matter of first impression, ruled that the physician–patient privilege does not protect from disclosure anonymous, third-party medical records.  You may read my post on the decision here.

And in another medical-related case, the supreme court declined to adopt a crime–fraud exception to the state’s peer-review privilege.  Novotny v. Sacred Heart Health Servs., 887 N.W.2d 83 (S.D. 2016).  You may read the decision here.

The Sossan Litigation

The Novotny case involves several lawsuits against Allen Sossan, a former physician who allegedly defrauded patients into unnecessary surgeries and is reportedly now living in Iran.  Here is a story from Becker’s Spine Review about the ostensible doctor. More…