Federal court rules peer review report can be reviewed

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted Nov. 14, 2005.

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The U.S Supreme Court's recent refusal to delineate a federal privilege for medical peer review proceedings forces officials in Maricopa County, Ariz., to turn over mortality review documents to plaintiffs in a medical malpractice lawsuit. The peer review took place after the death of an inmate who had been in custody.

In August, the 9th U.S. Circuit Court of Appeals ordered the Maricopa County officials to share the information during discovery. The appellate court ruled that federal law "recognizes no privilege of peer review in the context of a case involving the death of a prisoner."

The U.S. Supreme Court recently said it would not hear an appeal, leaving the 9th Circuit decision in place.

Carol Ann Agster and her husband are suing Maricopa County, its sheriff's department, Maricopa County Correctional Health Services and various individuals in connection with an Aug. 6, 2001, incident that resulted in the death of their son, Charles J. Agster III. Correctional Health Services employees treated Agster while he was at the jail. As required by its own policies and by the standards of the National Commission on Correctional Health Care, the group conducted a "critical incident report," after the inmate's death.

When a U.S. District Court ordered the report be turned over to the Agsters, Maricopa County appealed.

After the appellate court upheld the lower court's decision, the county appealed to the U.S. Supreme Court.

In an amicus brief filed with the Supreme Court, the American Medical Association and the Arizona Medical Assn. noted that important public interests are served by maintaining the confidentiality of medical peer review proceedings. They argued that those interests are undermined by the federal courts' refusal to recognize "a privilege for peer review proceedings conducted in good faith."

States on board

According to the brief, 49 states -- including Arizona -- have enacted statutes that offer varying degrees of protection to peer review proceedings. But the associations note that these laws are of limited value if federal courts do not recognize a privilege as well.

Several of the medical community's concerns about the use of peer review reports in litigation are well documented, but they bear repeating.

First, physicians who participate in such reviews fear they would open themselves up to being sued for defamation or discrimination by the physician who was criticized and that relationships with their colleagues would become strained.

Doctors also worry that the information they provide to peer reviewers about a colleague will then be used against that colleague in a courtroom.

Knowing that their participation on a panel or testimony against a physician could be discoverable in federal court has undoubtedly caused some physicians to shy away from the process all together.

The end result, most physicians argue, can only be bad for patients because peer review has been recognized as an effective way to address medical errors that jeopardize patient safety.

In citing these concerns in their brief, the AMA and ArMA maintain that the "safety of the public is a sufficiently compelling interest to outweigh, in this context, even the need for probative evidence in federal court proceedings."

The 9th Circuit, however, refused to extend privilege to keep secret a report concerning the death of a prisoner. "Whereas in the ordinary hospital it may be that the first object of all involved in patient care is the welfare of the patient, in the prison context the safety and efficiency of the prison may operate as goals affecting the care offered," the court said.

In this context, the judges ruled, it is particularly important that the public have access to the peer assessment of the care provided.

In the health care environment

The 9th Circuit's ruling is a narrow one and will be of limited use to parties to lawsuits who hope to cite it for discovery of peer reviews outside of the prison setting. Already, however, it has been cited in a similar decision by the U.S. District Court for the Eastern District of Pennsylvania.

Preliminary decisions by state appeals courts in North Carolina and Utah, though, show that the privilege that protects peer review from discovery will likely continue to face challenges and that some of those will be of reviews conducted in health care facilities.

In October, the Court of Appeals of North Carolina, in Windman v. Britthaven Inc., ruled that when a trial court compelled Britthaven to provide documents for discovery, nursing homes did not fit into any of the categories of health care providers covered by that state's statute protecting peer review material from discovery. The North Carolina Legislature amended the statute in August 2004, seven months too late to protect Britthaven.

And the Court of Appeals in Utah, in an August decision, ruled that an affidavit asserting privilege from a hospital's risk manager in the quality assurance department is not evidence enough to pre-empt discovery. In Cannon v. Salt Lake Medical Center, the wife of Gary R. Cannon alleged that the hospital provided negligent care when Cannon died from a subdural hematoma after a fall in his hospital room.

The court ruled that the district court judge erred by not requiring the hospital to submit its documents for an in camera review and sent the case back to the lower court to conduct that review before ruling the documents privileged. The court based its decision on a 1993 Utah Supreme Court conclusion that the state's privilege statute is limited to documents prepared specifically for peer review purposes.

Peer review has been an often litigated process and it's a safe bet that will continue to be the case.

The AMA and ArMA, in their brief, noted that the Patient Safety and Quality Improvement Act of 2005 could lay the groundwork for a federal peer review privilege.

It is likely only a matter of time before the Supreme Court is given another opportunity to interpret the act in a way that extends federal privilege to medical peer review activities, which are already protected from discovery by state law.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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