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…

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.