Leading by example: why the First Circuit should adopt a medical peer-review privilege.

• Author: Levin, Jared M.

INTRODUCTION

Suppose you represent a hospital in Maine, Massachusetts, New Hampshire, or Rhode Island. You assist your client in developing policies and procedures that help the hospital provide the highest quality of patient care. You are familiar with the peer-review process, a mechanism whereby a professional review body evaluates the soundness of a physician's medical decisions in any given situation.

One hurried morning, your client calls about a recent emergency room incident and a subsequent determination by the hospital's peer-review committee not to dismiss the physician involved. The hospital is concerned about a possible malpractice lawsuit and that the information discussed in the peer-review meeting could expose the hospital and physician to liability. Although your client wants to know whether the peer-review information would be disclosed during litigation, the answer is unclear and may depend on the forum--state or federal--in which the action is brought. In a state court, the outcome is more predictable because the judge simply must decide whether the state's medical peer-review statute protects the specific requested information from discovery. However, the applicable law that governs a federal court's analysis is determined by the court's jurisdiction--diversity or federal question--and, if it is the latter, then supplemental state law claims impact whether the federal court might recognize a medical peer-review evidentiary privilege.

One example of a federal court resolving the issue is a 2009 case from the United States District Court for the District of Rhode Island, in which the court held that the state's peer-review statute should apply and the peer-review information a plaintiff requested from a hospital was privileged because the information did not support her federal law claim. (1) In Bennett v. Kent County Memorial Hospital, (2) the plaintiff brought state negligence claims and federal claims under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), arguing that the hospital failed to provide appropriate medical tests and to stabilize her mother while receiving emergency care. (3) The defendant objected to answering questions during a deposition regarding peer-review discussions. (4) The court allowed the defendant to assert the state's medical peer-review privilege; the statute's confidentiality provision persuaded the court that such confidentiality was necessary for an effective peer-review process. (5) The court noted, however, that the "issue of what privilege law should apply in federal question cases with supplemental state law claims remains unresolved." (6) Under different circumstances, some district courts have refused to recognize the privilege. (7)

The unpredictability of whether federal courts will apply the state law privilege highlights the dilemma that hospitals, physicians, and other healthcare providers face when performing peer review and trying to protect confidentiality. (8) This uncertainty is only exacerbated by the fact that all fifty states and the District of Columbia have legislatively enacted some form of a medical peer-review privilege. (9) Consensus among the states indicates that the privilege's purpose--to improve healthcare quality and risk management by encouraging open discussion among physicians--serves important public interests. (10) Congress echoed this sentiment when it passed the Health Care Quality Improvement Act of 1986 ("HCQIA"). (11) However, courts disagree about whether HCQIA includes an evidentiary privilege for peer-review materials. (12)

This Note argues that the Court of Appeals for the First Circuit should become the first circuit to recognize the medical peer-review privilege in cases that include federal and state claims. (13) Doing so would settle the open question of whether this state privilege applies to a federal claim, a question over which district courts are split. (14) Because the Supreme Court has not addressed whether this privilege exists under federal law, courts in the First Circuit are forced to balance the policy interests that the privilege promotes against the probative value of the evidence sought to be admitted on a case-by-case basis. (15)

Part I of this Note provides the common elements of medical peer-review statutes and subsequently compares those laws of the First Circuit states. (16) Part II outlines discovery rules, HCQIA, and how federal courts decide whether to apply a state privilege invoked against a federal claim. (17)

Part II also reviews recent First Circuit district court cases that have both recognized and refused to recognize the privilege, and specifically explores the First Circuit's Hampers test. (18) Part III discusses the First Circuit's position in relation to its sister circuits, provides suggestions as to how the First Circuit could formulate a federal common law medical peer-review privilege, and, alternatively, proposes congressional action. (19)

1. HISTORY OF THE MEDICAL PEER-REVIEW PRIVILEGE

   In the healthcare industry, peer review is the process by which groups or committees of physicians review their colleagues' work. (20) The system provides a critical tool for evaluating physicians' credentials to practice in the hospital, improving their ongoing care through routine assessments, and determining whether to take action after specific quality concerns arise. (21) Because the process requires participation from healthcare professionals within an organization that are qualified to examine their peers, it is likely to create difficult conflicts among co-workers. (22) For instance, participants are concerned about the competing interests of some groups' efforts to obtain peer-review information, such as by plaintiffs in a medical malpractice case, insurance companies making payment decisions, or other healthcare providers making referrals. (23) To foster candid discussion in medical peer reviews, state legislatures enacted laws to protect the peer-review proceedings and materials. (24)

   1. Medical Peer-Review Statutes of the First Circuit

   The American Medical Association and scholars explain that good-faith peer review is afforded protection in some combination of the following three ways: (1) "involved individuals and institutions are granted immunity from lawsuits"; (2) "information related to the peer review process is deemed confidential"; and (3) "peer review work product is designated privileged and inadmissible in court." (25) All states within the First Circuit have statutes providing some form of immunity, confidentiality, and an evidentiary privilege to medical peer reviews. (26) In general, states that mention confidentiality do so in conjunction with granting a privilege, suggesting that this confidentiality language applies only in the judicial context rather than to any actual requirement that participants keep the information confidential. (27) Of the four First Circuit states, only Rhode Island provides sanctions for peer review participants that do not abide by the confidentiality language. (28) The immunity provisions stipulate immunity from suit, damages, or both. (29)

2. FEDERAL PROTECTION FOR THE MEDICAL PEER-REVIEW PRIVILEGE

   Federal Rule of Evidence 501 ("Rule 501") governs the use of privilege in federal litigation. (30) Rule 501 provides that federal courts follow common law where a plaintiff or defendant raises an issue of federal law and a privilege is asserted. (31) In civil suits, where the federal court has diversity jurisdiction, the state law from the forum state should supply the rules for privileges. (32) For example, one federal district court in the Eighth Circuit applied the forum state's medical peer-review statute to preclude from discovery certain documents relating to the patient's care because the parties were diverse. (33) Whether in state court, or federal court pursuant to diversity of citizenship, the plain language of the state's peer-review statute will supply the rules for the court to apply. (34)

   1. The Health Care Quality Improvement Act of 1986 ("HCQIA")

      In cases based on federal question jurisdiction, federal courts use their own judgment when considering an evidentiary privilege and are not bound by any specific state laws. (35) As expressed in Rule 501, the Constitution, federal statutes, and Supreme Court precedent should guide courts in determining whether there is a common-law privilege. (36) Without any constitutional protection or Supreme Court cases on point, courts have looked to the Health Care Quality Improvement Act of 1986 because it is the only federal law that addresses medical peer review. (37)

      As opposed to state medical peer-review statutes that typically include three distinct elements protecting the peer-review process, HCQIA only provides immunity. (38) Under HCQIA, when a "professional review body" meets four statutory requirements, then its participants are immune from damages. (39) Congress was silent about any privilege for peer-review proceedings under HCQIA, and courts presume that the legislature would have addressed the issue if it intended to grant a specific evidentiary privilege. (40)

      Consequently, federal courts are left to adopt a privilege as a matter of common law, if at all, and many courts have signaled reluctance in doing so. (41) For instance, in Syposs v. United States, (42) the United States District Court for the Western District of New York declined to extend the forum state's medical peer-review privilege to a federal question case arising under the Federal Tort Claims Act ("FTCA"). (43) In that case, the malpractice claim raised an issue of federal law because the surgeon practiced at a Veterans Administration Hospital. (44) The court found that the legislative history of HCQIA indicated Congress's explicit rejection of the notion that strict confidentiality of peer reviews was necessary to promote quality health care. (45) Additionally, the court rejected...