Peer review records opened in physician's discrimination suit
■ The federal court noted that all states recognize confidentiality in peer review proceedings, but legislatures may not have considered the impact on civil rights cases.
By Amy Lynn Sorrel — Posted July 16, 2007
Peer review records are open game in federal discrimination lawsuits, a federal appeals court recently ruled.
A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals in June ordered Houston Medical Center in Georgia to turn over seven years of peer review records to urologist Russell E. Adkins, MD. The black surgeon alleged that because of his race, he was held to a higher level of scrutiny than his colleagues when a peer review committee terminated his privileges.
The court recognized the patient safety benefits of the confidential process.
But judges said the overriding goal of "root[ing] out invidious discrimination" was more important than keeping peer review private to promote candid discussions about doctors' performance without fear of a lawsuit.
"Here we are confronted with a claim of racial discrimination within the peer review process itself," the opinion states.
The only way Dr. Adkins can prove his case "is to compare his peer review with the peer review files of other physicians," judges concluded.
Though the court confined its decision to federal civil rights actions, some doctors worry that plaintiffs might use it to circumvent peer review privilege to pursue other kinds of lawsuits. Others, however, praised the court for lifting the veil on peer review committees' attempts to use privilege to shield unfair treatment of certain doctors.
"The question is, does this now allow other plaintiffs just to file federal discrimination cases in an attempt to get these records to file other types of cases?" said Donald J. Palmisano Jr., general counsel to the Medical Assn. of Georgia. As an example, he pointed to medical liability suits, which normally would be subject to the privilege.
The doctors' group, along with the Georgia Hospital Assn., filed a friend-of-the-court brief in support of peer review confidentiality.
Palmisano said opening up sensitive peer review information would chill doctors' willingness to participate in the process and undermine its purpose of ensuring quality of care.
Attorney Paul Koster, who represents Houston Medical Center, warned that the ruling could be used to apply more broadly to federal claims other than discrimination. For example, a doctor could bring an antitrust action alleging other physicians diverted patients to limit competition. The doctor could seek to open peer review records to support the claim.
"There is a potential for filing suit asking for any and all peer review files as a means to wreak havoc on hospitals, and that's a very big danger," Koster said.
The hospital denies the allegations and is considering an appeal to the full bench of the 11th Circuit.
Koster added that the decision follows similar rulings out of the 4th and 7th Circuits and could further establish a dangerous standard for other jurisdictions to follow.
No room for abuses
However, Dr. Adkins' attorney, Bernadette C. Crucilla, said those fears are unwarranted. She agrees that the purpose of peer review protections is to let doctors speak freely to learn from their mistakes.
"What they are not to be used for is closed secret forums to discriminate against doctors," Crucilla said. "If you don't discriminate, then you have nothing to worry about."
Palmisano said peer review privilege should not serve as a cover-up for unfair actions.
"But you also have to weigh that factor against what is the public good here. For physicians, patient safety is the overriding goal in all of this," he said. Doctors have other ways to get the information they need to prove discrimination, he said.
The appeals court, however, found the peer review records that Houston Medical Center sought to protect "critical" to Dr. Adkins' claim. The hospital revoked his privileges after claiming he failed to complete medical charts on time, was repeatedly unavailable for call, and operated on an infant without proper surgical equipment in 2002, court documents show.
Dr. Adkins conceded that his record-keeping was not perfect according to hospital protocols, the opinion states. But he argued he was not the only one out of line and yet was treated more harshly than others because of his race. Dr. Adkins also claimed that hospital nurses falsified records related to his surgical patient's condition to cover up for the hospital's own improper care and to spark a peer review proceeding, according to Crucilla.
"We had a hard time proving any of this because hospitals throw up their hands and say, 'You can't get anything, it's privileged,' " she said. "Now we get a chance to do that."
Dr. Adkins asked for peer review records of all physicians at Houston Medical Center during his seven-year tenure, which began in 1997. A trial court found the peer review privilege applied to federal discrimination claims but ordered the hospital to give Dr. Adkins a list, without the underlying documents, of incidents that led to peer review in a five-year period.
The court also privately reviewed a list of the race of the 47 doctors suspended during that time. It then ruled in favor of the hospital.
But the appeals court said the trial court unfairly limited Dr. Adkins' access to pertinent records. All 50 states and the District of Columbia recognize medical peer review privilege, judges noted. Doctors and hospitals have a "legitimate interest" in keeping the proceedings confidential, they noted.
Still, they found no evidence that state legislatures considered the potential impact of that privilege in hindering civil rights cases.