Medical peer review materials not privileged in discrimination cases

Law Reporter, Dec 2001

Medical peer review materials not privileged in discrimination cases. Virmani v. Novant Health Inc., 259 F.3d 284 (4th Cir. 2001).

The Fourth Circuit Court of.Apps held that medical peer review materials are not priviledged in discrimination cases.

Here, Virmani, a physician, was stripped of his medical staff privileges at a hospital after two hospital peer review panels concluded that some of his cases were problematic. Virmani sued the hospital, alleging it discriminated against him on the basis of his race and national origin. Plaintiff sought to obtain all peer review records related to all reviews of physicians during the past 20 years. Defendant moved for a protective order, arguing that peer review materials were privileged under state law.

A trial court denied defendant's motion, refusing to recognize a privilege for peer review materials.

Affirming, the Fourth Circuit cited U.S. Supreme Court case law holding that courts should not create and apply an evidentiary privilege unless it promotes sufficiently important interests that outweigh the need for probative evidence. Here, the issue is whether the interest in promoting candor in medical peer review proceedings outweighs the need for probative evidence in a discrimination case, the court explained. Citing Jaffee ro. Redmond, 518 U.S. 1 (1996), 11 PNLR 136 (Sept. 1996)-in which the Court held that a psychotherapist privilege exists-defendant argued that medical peer review materials should be privileged because (1) the privilege serves a compelling public end, (2) rejection of the privilege would result in only a modest evidentiary benefit, and (3) every state has recognized the privilege.

Rejecting defendant's argument, the court found that the issue of privilege in Jaffee arose in an entirely different context than the case here. In Jaffee, plaintiff brought an excessive force claim against a police officer and sought notes from the officer's psychotherapy sessions. There, the psychotherapy sessions did not form the basis of the underlying claim of excessive force. Here, however, plaintiff has alleged that the peer review proceedings themselves were conducted in a discriminatory manner. The best evidence to show this will be found in the process by which the decision to suspend him was reached, the court reasoned.

Moreover, the evidentiary benefit that will be realized by refusing to grant defendant a privilege is potentially great. The interest in helping eradicate discrimination by providing the only evidence that can establish its occurrence outweighs the interest in promoting candor in the medical peer review process, the court said.

The court also rejected defendant's argument that every state has recognized a medical peer review privilege. There is no evidence that state legislatures considered the potential impact on discrimination cases of a privilege for medical peer review materials, the court said. Consequently, because states' policy decisions reflect different concerns than those implicated here, their decisions have no effect here.

Additionally, the court found that Congress has not provided a privilege for the materials. Congress provided immunity to participants in professional review bodies after concluding that effective peer review would reduce medical negligence and help improve the quality of health care. However, Congress also created an express exception to this immunity in the case of civil rights actions. Therefore, the court concluded, Congress has not elevated the interest in encouraging peer review over the interest in combating discrimination.

Plaintiff's Counsel James Clayton Culotta,

*Kenneth J. Haber, and

Charles E. Hamilton III, all of Rockville, Md.

A document from the Jaffee v. Redmond case is available through the Court Document Sets section in the back of this issue, courtesy of the National Association of Social Workers, amicus curiae in the case.

An asterisk (*) appearing beside the name of plaintiff's counsel indicates that the attorney is an ATLA member. To obtain additional information about a case report, contact counsel through your ATLA membership directory.