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…

Illinois Rejects Self-Critical Analysis Privilege—Will Other States Follow?

In a long-awaited ruling, the Illinois Supreme Court refused to recognize a common law self-critical analysis privilege and ordered production of a company’s quality-review report generated in response to an infant’s death.  Although arguably a narrow ruling, this decision will likely influence other state courts faced with a similar issue—do public-policy considerations warrant recognition of a common law self-critical analysis privilege.  Harris v. One Hope United, Inc., 2015 IL 117200 (Ill. Mar. 19, 2015).  You may read the decision here.

Illinois Supreme Court

Illinois Supreme Court

The Case

An infant died while in her mother’s care and in One Hope United’s family services program. The public guardian, acting as the infant’s estate administrator, filed a wrongful death suit against the mother and One Hope. Discovery revealed that One Hope investigated the death and prepared a post-death “Priority Review” report that evaluated its services.

One Hope refused to produce the Priority Review report on grounds that the self-critical analysis privilege protected its disclosure. The trial court refused to recognize the privilege, held One Hope in “friendly contempt,” and set the stage for appeal. In a decision profiled in this post, the appellate court also refused to adopt the privilege.

Pertinent Issues

As noted in my prior post, a threshold issue was whether the Illinois evidence rules permitted courts to adopt new common-law evidentiary privileges and modify existing privileges, or whether that role fell exclusively within the legislature’s domain.  And if the evidence rules permitted common-law privileges development, did public policy considerations compel adoption of a self-critical-analysis privilege.

The Ruling

The Supreme Court assumed, without directly addressing, that it could adopt new common-law privileges, but only in “rare instances.”  Those instances arise where the privilege proponent sufficiently proves each of four elements: (1) the communications originated in a confidence that they would not be disclosed; (2) confidentiality is essential to the maintenance of the parties’ relationship; (3) the relation at issue is one which “in the opinion of the community ought to be sedulously fostered”; and (4) the injury to the relation produced by disclosure outweighs the benefit of the truth-finding process and “the correct disposal of litigation.”

As to the 4th element, which focuses on public-policy considerations, the Supreme Court noted that adopting new privileges “involves a balancing of public policies which should be left to the legislature” and that the judiciary’s function was not “to promote policies aimed at broader social goals.”

So, the court looked for any legislative evidence to inform whether it should adopt a self-critical analysis privilege in this instance.  Reviewing the Child Death Review Team Act, which governs governmental panels reviewing minors’ deaths, and the Medical Studies Act, which creates a medial peer-review privilege, the court determined that these acts did not favor adoption of a self-critical analysis privilege.  The court reasoned that the Illinois legislature could have extended the peer-review privilege to entities such as One Hope, but did not; and the Child Death Review Team Act arguably encouraged rather than discouraged disclosure.

In sum, the court refused to recognize a common law self-critical analysis privilege because it is a “matter more appropriately a subject for legislative action.”  The court avoided “judicial infringement upon what is principally a policymaking decision for the legislature,” and reviewed whether public-policy expressions in existing legislation “warrant[ed] a ‘rare’ exercise of judicial authority” in recognizing new privileges.  Finding no legislative support, the court rejected the privilege.

PoP Analysis

The court focused on existing legislation relevant to One Hope’s activities and concluded that “the type of information sought in discovery here is not subject to a self-critical analysis privilege.” This limitation indicates that Illinois courts may re-consider a self-critical analysis privilege in other contexts; however, the Harris ruling tells us that adoption of new common law privileges is “rare” and existing legislation must clearly point toward the privilege’s adoption in a particular set of circumstances.

So, how will other states react to Harris when determining whether to adopt a self-critical analysis privilege? The self-critical analysis privilege, a product of the medical peer-review privilege first adopted in Bredice v. Doctors Hosp., Inc. 50 FRD 249 (D.D.C. 1970), encourages entities to undertake candid and unrestrained self-examinations for quality-improvement purposes by promising protection from discovery.  The theory is that entities will not be forthcoming and candid in their self-analyses without confidentiality assurances, and the lack of candidness will thwart improvement.

The Harris court effectively declined to assess whether Illinois common law should encourage self-examinations by adopting the privilege, instead scanning statutes to discern whether the legislature had already made this public-policy determination.  Courts in other states, however, may not feel constrained by existing legislation, particularly when legislatively approved state evidence rules, like FRE 501, permit common-law development of evidentiary privileges.

Illinois interprets this development opportunity narrowly, but other states may not.

My thanks to Jeff Bergman of the Chicago litigation firm of Mandell Menkes for informing me of the court’s release of this opinion.

Peer-Review Privilege Not Preempted by Regulations Governing Institutional Review Boards

In a case of first impression, an Alabama federal court ruled that federal statutes and regulations governing Institutional Review Boards do not preempt Alabama’s peer-review privilege. The court also ruled, in another first-impression issue IRB, that a University of Alabama-Birmingham IRB fell within the scope of the peer-review privilege. Looney v. Moore, 2014 WL 1877596 (N.D. Ala. May 12, 2014). You may review the decision here.

Institutional Review Boards

An Institutional Review Board is a committee established by a medical entity that approves, oversees, and reviews biomedical and behavioral research involving humans. IRBs essentially serve as ethical review boards overseeing clinical trials regarding, for example, new pharmaceuticals or medical devices. The HHS Secretary mandates that entities conducting biomedical or behavioral health studies implement an IRB. See 42 USC § 289.

IRB and Peer-Review Privilege

It may not appear that IRBs fall within the scope of a traditional peer-review privilege because it does not provide quality-assurance reviews of adverse medical-treatment events. Some courts have found that state peer-review privileges do not cover IRBs. See PJ v. Utah, 247 FRD 664 (D. Utah 2007); Esdale v. Am. Cmty. Mut. Ins. Co., 1995 WL 263479 (N.D. Ill. May 3, 1995); Konrady v. Oesterling, 149 FRD 592 (D. Minn. 1999).

Other courts have found the opposite–that state peer-review privileges cover IRBs. See, e.g., KD v. US, 715 F. Supp. 2d 587 (D. Del. 2010).

Alabama Peer-Review Privilege Covers IRBs

The Alabama federal court reviewed Alabama’s peer-review privilege, found at Alabama Code 22-21-8. The privilege covers confidential materials prepared by a “hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency.”

At issue in the Looney case was whether UAB’s IRB failed to obtain patient consent to a clinical research trial performed on premature infants with low birth weights. The court determined that UAB’s IRB qualified as a “quality assurance agency,” and, as such, the peer-review privilege covered the requested IRB documents.

No Preemption

The plaintiffs, however, argued that interpretation of the peer-review privilege’s scope was irrelevant because federal statutes and regulations governing IRBs preempted the privilege’s application. See 45 CFR Part 46.  In a matter of first impression in the 11th Circuit, the court reviewed the applicable federal statutes and regulations, and found no intent to preempt state peer-review privileges. Noting that “congressional and regulatory silence usually defeats a claim of preemption,” the court ruled that federal statutes and regulations do not preempt state peer-review privileges.