A lawsuit possibly headed to the U.S. Supreme Court may bring a definitive ruling on whether hospitals peer-review records enjoy any protection in federal courts.
A Georgia urologists civil rights complaint led to a June ruling by the 11th U.S. Circuit Court of Appeals that theres no such privilege. That outcome, though not unprecedented, was troubling to the American Hospital Association and those who likewise believe the peer-review process demands confidentiality in order for hospitals to deal with mistakes and the people who make them.
It was the first time the 11th Circuit, based in Atlanta, weighed in on the topic, and the opinion added to a growing tide of federal decisions taking a dim view of peer-review confidentiality compared with the rights of plaintiffs to make their cases. The hospital involved in the lawsuit, 186-bed Houston Medical Center in Warner Robins, Ga., has asked the Supreme Court to review the case, and the bid has attracted the support of hospital associations and the Joint Commission. The American Medical Association has not become involved in the case.
No federal law protects the medical peer-review process from the prying eyes of litigants, leaving hospitals to argue that a privilege established in state laws in all 50 states and the District of Columbia should carry over by way of common law.
Unfortunately the majority of the federal courts that have looked at this issue have not been friendly to hospitals or medical staffs in upholding the peer-review privilege, said lawyer Kevin Grady, a partner in Alston & Bird in Atlanta, who drafted a friend-of-the-court brief submitted on behalf of the AHA and the state hospital associations in the 11th Circuits jurisdiction, Alabama, Florida and Georgia.
The Joint Commission separately submitted a brief encouraging the high court to take the case. This is a very serious matterthe Supreme Court should take this case and deal with this issue, said Harold Bressler, the commissions general counsel, who wrote the brief. The Joint Commission standards require peer review, and the Joint Commission wants that peer review to be effective.
The hospital associations are hopeful that a recent Supreme Court opinion indicates a majority of the current justices will be sympathetic to the argument that federal courts will become the preferred venue for vendettas against hospitals if judges make them produce reams of records every time an angry physician files a civil rights, antitrust or other federal complaint, no matter how thin.
Its a bludgeoning device, Grady said. Thats whats at stake here. Whenever a physician loses privileges, one of the first tactics is to attempt to get all other peer-review proceedings.
You dont want everyone whos ever been part of a peer-review proceeding to all of a sudden be hauled in for depositions on totally extraneous issues, Grady said.
In the Georgia case, that physician was Russell Adkins. Adkins, who is black, alleged in a 2004 lawsuit that Houston Medical Center had treated him unfairly because of his race, first subjecting all of his charts to review and imposing other conditions on his position before ultimately terminating him on bogus grounds. To support his claim, Adkins asked for documents related to peer review of any Houston physician during the seven years he was on staff.
The judge, finding that records were privileged, made the hospital turn over a smaller set of records, limiting the scope to the department of surgery and a shorter period of time, and reviewed them in his chambers to determine whether the case should go forward. He decided it should not.
On appeal, the 11th Circuit decided Adkins was entitled to greater latitude in getting what he believed could prove his case.
The privilege would promote vigorous oversight of physician performance, U.S. Circuit Court Judge Charles Wilson wrote in the opinion. But the privilege must be considered against a corresponding and overriding goalthe discovery of evidence essential to determining whether there has been discrimination in employment.
The hospital associations brief, meanwhile, cites an important opinion the Supreme Court published in May deciding Bell Atlantic Corp. v. Twombly, an antitrust case in which telephone and Internet customers alleged a price-fixing conspiracy among carriers. The court ruled that the plaintiffs needed to start with enough facts to make their claim plausible before triggering the complex and expensive phase of modern discovery, which will push cost-conscious defendants to settle even anemic cases, Justice David Souter wrote.
But Michael Cassidy, a lawyer with Tucker Arensberg in Pittsburgh who represents physicians, said hospitals have overreached in trying to keep a lid on peer-review records, and have often argued erroneously that the records are protected by the federal Health Care Quality Improvement Act of 1986, which creates qualified immunity for physicians who participate in the process.
Cassidy said its an open question whether a state privilege applies in federal court, but he argues it shouldnt. The physicians position is that if I am being discriminated against in violation of federal law, I should have access to the records to prove that, Cassidy said.
The hospitals argument is conceptually sound, but in practice you cant protect an individuals rights which have been granted by federal law without giving them some discovery to determine whether theyre being treated the same as others in similar positions, Cassidy said.
Maureen Mudron, Washington counsel for the AHA, said the Supreme Court previously decided that unanimity of state laws protecting communications between psychologists should be recognized in federal courts because otherwise the trust the states intended to foster would be subverted.
This case raises the same kind of question, Mudron said. The peer-review process is an essential part of hospital patient-safety and quality-improvement activities, and the confidentiality protection is an essential element to assure that there is effective peer review.