THE EROSION OF THE MEDICAL PEER REVIEW PRIVILEGE IN FEDERAL DISCRIMINATION CLAIMS

Two months ago, in the Adkins v. Christie decision,1 the Eleventh Circuit Court of Appeals declined to recognize medical peer review privileges in federal discrimination cases, explaining that the “social goal of eliminating employment discrimination” overrides the policy concerns that support medical peer review privileges. In so doing, it joined the Fourth Circuit Court of Appeals’ prior holding inVirmani v. Novant Health, Inc.,2 wherein the Fourth Circuit similarly determined that the interests in obtaining evidence in a discrimination lawsuit outweigh interests in protecting the confidentiality of medical peer review communications.

The Adkins and Virmani decisions involved racial discrimination claims brought by physicians against hospitals who had terminated their staff privileges. In each case, the physician sought discovery of peer review records for other physicians during preceding years, arguing that such evidence was needed to establish the discriminatory use of the peer review process to support the terminations. As expected, the defendant hospitals objected to the discovery by claiming medical peer review privilege.

Both the Fourth and Eleventh Circuit acknowledged that all 50 states recognize the medical peer review privilege as a means to balance the need for candor in peer review discussions against a plaintiff’s access to evidence, particularly evidence in malpractice lawsuits. Nonetheless, the courts did not believe that such widespread use and recognition prevailed against the goal of eradicating discrimination and the need for discrimination plaintiffs to access evidence which could support their claims. In this regard, the courts noted that the plaintiffs alleged the peer review process was, itself, discriminatory and that the records constituted the only information which could support or negate these allegations.3

How, if at all, will the Adkins decision impact the viability of the medical peer review privilege in discrimination claims? First, it should be noted that the decision deals only with federal discrimination claims filed in federal courts, and its precedent is limited to states within the Eleventh Circuit (Alabama, Florida and Georgia). Moreover, the decision is arguably limited to its facts, which involve allegations that the peer review process itself was discriminatory. Some might even question Adkins’ impact because many states, such as Texas, already provide exceptions to the privilege for discrimination suits. As such, one could say that Adkins’ potential reach is limited.

Hospitals and physician groups should not, however, disregard Adkins so easily. Texas law does already state that “if a judge makes a preliminary finding that a proceeding or record of a medical peer review committee or communication made to the committee is relevant to … a civil rights proceeding brought under 42 U.S.C. § 1983, the proceeding, record or communication is not confidential to the extent that it is considered relevant.”4But, the import of this exception is that it is not automatic; a party seeking peer review records must first seek and obtain a court finding that such records are relevant for that particular case and, even then, this exception applies only as to claims brought under 42 U.S.C. §1983. Indeed, as noted by one court, this exception requires a preliminary finding of relevance in order to prevent fishing expeditions and “abuse and eventual emasculation of limited exceptions.”5 The Adkinsdecision at the very least increases legal precedent supporting requests for peer review records in federal discrimination cases, and it arguably helps to establish as a matter of law that such records are relevant, thereby foreclosing any need for a motion or hearing on the issue.

Moreover, notwithstanding Adkins’ precedential value, it is clear that Adkins demonstrates a public policy stance favoring investigation of discrimination claims over the needs of medical peer review committees to confer frankly and without concern for disclosure. This public policy position may fuel continuing erosion of the privilege in any type of alleged discrimination situation.

Adkins demonstrates that, if sued for alleged discrimination, hospitals must be prepared for the possibility that the plaintiff may seek a broad scope of peer review records and the court may order disclosure of such records. Peer review committees should therefore always be mindful of commentary offered during meetings and in records. Such commentary, even if inadvertent or irrelevant to the real issues being examined by the committee, may ultimately be discovered and could be used to support a discrimination claim or in related litigation.

1Adkins v. Christie, 488 F.3d 1324 (11th Cir. June 12, 2007).

2Virmani v. Novant Health, Inc., 259 F.3d 284 (4th Cir. 2001).

3SeeAdkins, 488 F.3d at 1329 (“The only way that Adkins can demonstrate the existence of different treatment in his case … is to compare his peer review with the peer review filed with other physicians …”).

4See Tex. Occ. Code § 160.007(b).

5In re Tune, 32 S.W.3d 306 (Tex. App. – Amarillo 2000, no pet.).