Press the print button on your browser.
Click here to return to the previous page.
Peer review
Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005)
Issue
The issue here was whether a county properly could claim a state peer review privilege as to a mortality review conducted by its correctional health services after the death of a prisoner while in the county’s custody.
AMA interest
The AMA believes that for peer review to be effective, the peer review data must be kept confidential. Accordingly, the AMA supports legislation that protects peer review records from discovery in judicial or administrative proceedings.
Case summary
Charles J. Agster III was arrested and taken to the Maricopa County jail, where he was placed in a restraint chair. His respiration decreased, he developed an irregular heartbeat, and he became unconscious. He was then transported to a hospital, where he died. Per state and federal standards, the jail was required to and did undertake a confidential mortality review.
Agster’s parents and estate sued Maricopa County and several of its employees in Arizona state court, but the defendants removed the case to federal court. The plaintiffs sought production of the mortality review from the county. The county objected to the request, citing Arizona law on peer review confidentiality. The district court denied the objection, finding that no federal peer review privilege was available in the Ninth Circuit. The county then appealed to the Ninth Circuit.
The Ninth Circuit acknowledged that it had never recognized a federal peer review privilege. It also noted that it might recognize that privilege in an appropriate case. This, however, was not the right case.
The appellate court noted that the defendants would have had the privilege available to them if they had remained in state court, but they had deliberately chosen a federal forum, where the privilege had never been honored. Furthermore, while the claim for a privilege might be greater between purely private litigants, this case involved a claim of public accountability. The court also noted that Congress had considered the grant of a peer review privilege when it passed and then amended the Health Care Quality Improvement Act of 1986 (“HCQIA”) but had declined to do so.
The Ninth Circuit affirmed the district court’s order to turn over the peer review report.
Maricopa County sought review by the United States Supreme Court, but that request was denied.
Litigation Center involvement
The Litigation Center submitted an amicus brief to the United States Supreme Court, but the Supreme Court declined to hear the appeal.
Atteberry v. Longmont United Hospital, 221 F.R.D. 644 (D.Colo. 2004)
Issue
The issue in this case was whether a hospital's medical peer review records should be disclosed in litigation.
AMA interest
The AMA supports the peer review process. It believes that the proceedings of the peer review investigation and of the deliberative body must be kept confidential if the process is to work effectively.
Case summary
This lawsuit, brought against a hospital and a physician, was based partly on a claimed violation of the Emergency Medical Treatment and Active Labor Act ("EMTALA") and partly on a claim of state law medical negligence. The plaintiff sought to require the hospital to produce medical peer review information in pre-trial discovery. The defendants objected, based on a Colorado statute that protects medical peer review documents from disclosure. Because federal courts have discretion as to whether to recognize state evidentiary privileges in suits that include a federal claim, the magistrate judge recommended that the presiding judge order the hospital to disclose the requested peer review records. The defendants objected, and the issue was appealed to the presiding judge, who upheld the magistrate's recommendation and ordered production of the peer review materials.
Litigation Center involvement
The Litigation Center filed an amicus curiae brief to support the defendants' objection to disclosure. The brief argued that disclosure of peer review documents would weaken the peer review process. This, in turn, could undermine quality control of medical care within hospitals and other institutions that engage in peer review. At the same time, disclosure of medical peer review documents would not significantly improve the truth-seeking function of the judicial system.
View the brief (PDF, 104KB)
Clow v. Webber Hospital Association (Maine Super. Ct.)
The Maine Board of Osteopathic Licensure investigated an anonymous complaint against Dr. Clow, an osteopathic physician. The Licensure Board subpoenaed the records of a peer review conducted at Dr. Clow’s hospital, Webber Hospital. Webber agreed to turn over these records, but Dr. Clow sought a court order to prevent the disclosure. The Maine Medical Association and the Litigation Center filed an amicus brief to support Dr. Clow.
The court held against Dr. Clow and found that Webber Hospital could turn over its records to the Licensure Board.
Crow v. Penrose-St. Francis Healthcare System 169 P.3d 158 (Colo. 2007)
Issue
The issue in this case is how the public health interests of society, which are furthered by allowing medical peer review actions to proceed without judicial interference, are to be weighed against an individual physician's right to due process in peer review proceedings.
AMA interest
The AMA supports the peer review process, but it also believes that a physician's due process rights must be respected.
Case summary
Dr. Crow, a physician on the medical staff of Penrose-St. Francis Hospital, brought a lawsuit to challenge a peer review action pending against him. He alleged that the peer review proceedings were procedurally flawed in many respects, his privileges had been summarily suspended, and his reputation injured while the hospital unduly protracted the proceedings. He asked that the peer review be enjoined and that he be awarded monetary damages. The hospital moved to dismiss the trial court proceeding, primarily on the ground that the dispute was not yet "ripe" (i.e., adequately concrete and defined to warrant judicial decision), but that motion was denied.
After the trial court refused to dismiss the case, the hospital, in an extraordinary action, asked the Colorado Supreme Court to order the trial court to dismiss Dr. Crow's suit. The hospital asserted that Dr. Crow's suit, if allowed to continue prior to the completion of the peer review proceedings, would chill the conduct of further peer review actions.
The Colorado Supreme Court ruled that Dr. Crow's case should be dismissed as premature. Thus, Dr. Crow would have to wait until exhaustion of the peer review process before he could challenge it. The Supreme Court did not address the hospital's contention that Dr. Crow's suit would unduly chill peer review in Colorado.
Litigation Center involvement
The Litigation Center filed a brief in the Colorado Supreme Court on behalf of the AMA, the Colorado Medical Society, and the American College of Surgeons. The brief advised the Supreme Court how organized medicine believes the public health interests in peer review should be balanced against the private concern for due process. It recommended that the Supreme Court allow the trial court to retain jurisdiction over the case.
View the brief (PDF, 129KB).
Fullerton v. Florida Medical Association 938 So.2d 587 (Fla. Dist. Ct. App., 1st Dist 2006)
Issue
The primary issues in this case are (a) whether members of medical societies should be able to consult with those societies if they feel they have been harmed by false expert witness testimony and (b) whether medical societies should be able to investigate physicians who have been accused of giving false expert witness testimony, for the purpose of taking appropriate action.
AMA interest
The AMA supports the right of physicians to consult with their medical societies when they believe they have been harmed by another physician’s false expert witness testimony. The AMA also supports the right of medical societies’ peer review programs to investigate complaints of false expert witness testimony by physicians.
Case summary
The case arose out of expert witness testimony that Dr. John Fullerton had given for the plaintiff in a professional liability suit against three physicians. The court found that the physicians were not liable. Subsequently, these physicians complained to the Florida Medical Association (“FMA”) that Dr. Fullerton's testimony fell "below reasonable standards" and had been provided "for the sole purpose of propagating a frivolous lawsuit for financial gain." They asked FMA to review the testimony under its expert witness peer review program and determine whether it comported with professional standards. They further asked that, if the testimony was found to be substandard, FMA submit its findings to the Florida Board of Medicine for proper disciplinary action.
In response, Dr. Fullerton sued FMA and the three physicians in the Circuit Court of Leon County, Florida. He stated that the defendants-physicians’ assertions were not true and contended that the FMA expert witness peer review program was “intimidating, hindering, and deterring persons, including Plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice.” He did not allege, however, that the defendants-physicians' letter of complaint to FMA had been sent in bad faith or that they lacked a reasonable basis for their belief that Dr. Fullerton had testified "below reasonable standards" and in support of a frivolous lawsuit.
The trial court dismissed the lawsuit for failure to state a cause of action but granted Dr. Fullerton the right to file an amended complaint. Dr. Fullerton then filed an amended complaint against only FMA.
A final and appealable judgment was entered in favor of the individual physicians, which Dr. Fullerton appealed. The District Court of Appeal reversed the trial court, finding that neither FMA nor the three physicians were immunized from liability by the state peer review law or the Federal Health Care Quality Improvement Act. In this ruling, the court did not discuss whether the three physicians’ complaint was a non-actionable statement of opinion or whether they were protected under state and federal constitutional guarantees of free expression and free association.
After FMA and the three physicians asked the District Court of Appeal to reconsider its decision, the court entered a revised ruling, which largely restated the court’s earlier decision, but also specified that FMA and the physician defendants would be allowed, on remand to the trial court, to argue a defense based on protections provided by the constitution and case law precedent.
Litigation Center involvement
The Litigation Center contributed to the defense costs of the defendant physicians and filed a brief as amicus curiae to support the individual physician defendants in Dr. Fullerton’s appeal.
View the brief (PDF, 96KB).
HCA Health Services of Va. v. Levin, 530 S.E.2d 417 (Va. S.Ct. 2000)
Following a supposed expose of his medical practices, Dr. Levin sued a television station and others for defamation and related common law claims. The trial court ordered that the peer review records of three hospitals be produced in pre-trial discovery at the request of the television station, notwithstanding a statutory privilege against production of such records finding that the privilege applied only to medical malpractice suits. The judge also felt that Dr. Levin had waived the privilege by filing suit. Because of their failure to produce the records, she found the hospitals in contempt of court and fined them $150 per day until they complied with her order.
On appeal to the Virginia Supreme Court, the Litigation Center joined an amicus curiae brief filed by the Virginia Medical Society. The Virginia Supreme Court reversed the trial court’s decision. Consistent with arguments advanced by AMA/VMS, the court held that (1) the peer review statute granted an unqualified privilege to peer review records, (2) the privilege belonged to the hospital and could not be unilaterally waived by a physician and (3) the facts of this case did not constitute “extraordinary circumstances” sufficient to warrant disclosure of the privileged information.
In re: Fairview University Medical Center, 590 N.W.2d 150 (Minn. Ct. App. 1999)
The Minnesota State Board of Medical Practice (“BMP”) sought to discover hospital peer review information in a BMP disciplinary action against a physician. The trial court found against BMP, but BMP appealed. The Litigation Center filed an amicus curiae brief, which opposed BMP’s attempt to discover this peer review information.
Interest in this Case: The Litigation Center wants to help state medical societies challenge attacks to their states’ peer review processes.
Result: The appellate court affirmed, holding that, under Minnesota law, peer review proceedings are not discoverable.
Mileikowsky v. Superior Court (Cal. App. 2001)
Issue
The issue in this case was whether a hospital was required to provide a timely peer review hearing to a physician whose privileges it suspends.
AMA interest
The AMA supports a timely and fair peer review process.
Case summary
This case alleged that a hospital, Encino Tarzana Regional Medical Center (ETRMC), abused the peer review process. Dr. Mileikowsky, an obstetrician/gynecologist specializing in in-vitro fertilization at ETRMC, became embroiled in a number of disputes with ETRMC. He testified against ETRMC and against several of the physicians on its staff in malpractice suits. ETRMC attempted to deny or curtail his privileges, and Dr. Mileikowsky obtained two court injunctions against ETRMC.
Without prior notice, ETRMC abruptly informed Dr. Mileikowsky that it had summarily suspended his medical staff privileges, based on a peer review proceeding. After Dr. Mileikowsky requested a hearing, ETRMC sent Dr. Mileikowsky a formal notice of charges, listing complaints against him, dating back 10 years. ETRMC repeatedly postponed Dr.Mileikowsky’s hearing. Thus, Dr. Mileikowsky’s medical staff privileges were summarily suspended without a hearing. Dr. Mileikowsky applied to another hospital for medical staff privileges but was refused when that hospital learned of his suspension from ETRMC.
Under California law, a hospital may suspend a physician’s staff privileges without a hearing only if it finds that the physician presents “imminent danger” to patient health or safety. Even then, the hospital must hold a hearing on the grounds for the suspension within sixty days after receipt of the physician’s request. The entire peer review process must be completed “within a reasonable time.” ETRMC, by delay, avoided these obligations.
Dr. Mileikowsky sued the hospital in the Los Angeles County Superior Court and requested a preliminary injunction to restore his staff privileges. The court denied the preliminary injunction, holding that, in light of the ongoing peer review proceeding, it lacked jurisdiction. Dr. Mileikowsky appealed to the California Court of Appeal. He requested a writ of mandamus, which would order the trial judge to adjudicate his request for a preliminary injunction.
The Court of Appeal , in a two paragraph order, denied Dr. Mileikowsky’s appeal. Although the hospital had not raised the point in its brief, the court held that Dr. Mileikowsky’s lawyer had not given the hospital proper notice of the motion for preliminary injunction. Because of this procedural flaw, the trial court did, indeed, lack jurisdiction.
Litigation Center involvement
The Litigation Center joined a brief prepared by the California Medical Association in support of Dr. Mileikowsky. The CMA/Litigation Center brief emphasized Dr. Mileikowsky’s procedural rights and avoided taking sides in the ultimate factual dispute. The brief pointed out that a fair peer review procedure requires that a physician’s staff privileges not be abridged without a hearing. Summary suspension of those privileges should be allowed only if there is an emergency and then only if a hearing is held promptly to determine if the emergency is genuine. The brief urged an expedited appeal.
Podgurski v. Grey, 1999 U.S. App. LEXIS 18152 (2nd Cir. 1999)
(unpublished opinion)
The Litigation Center, along with the Connecticut State Medical Society, filed an amicus brief before the United States Court of Appeals for the Second Circuit. The issue was whether the Connecticut peer review statute prohibited lawsuits altogether against physicians who review their colleagues’ professional performance or whether the statute merely protected those physicians from liability after a full trial. The Litigation Center’s position was that the statute immunized good faith peer review conduct altogether from litigation.
The appellate court dismissed the appeal for want of jurisdiction but suggested that the district court re-examine whether plaintiff could present any evidence of the defendants’ alleged malice sufficient to place the immunity issue in dispute. On remand, the district court granted defendants’ motion for a finding of immunity and dismissed the action.
Public Citizen, Inc. v. United States Department of HHS
332 F.3d 654 (D.C. Cir. 2003)
This case concerned the confidentiality of peer review investigations for Medicare patients. The Department of Health and Human Services (“HHS”) regulations provide that the investigative findings are to be kept confidential from the affected patients, except under limited circumstances. A federal district court held those regulations invalid, but HHS appealed. The Litigation Center supported the regulations, because they maintain peer review confidentiality.
The Medicare Act provides that, when there is some indication of substandard care for patients covered by Medicare, the situation is to be investigated by companies known as Peer Review Organizations (“PROs”). The statute further provides that the results of such investigations are to be submitted to the patients (or their representatives) whose care is at issue, in accordance with HHS regulations. HHS regulations provide that, when such investigations are made, the patients are to be notified when the investigations have been completed. However, the PROs are not to notify the patients of the actual findings (e.g., proper care, substandard care, or negligence) unless the persons being investigated consent to such disclosure. Public Citizen contended that the HHS regulations are invalid and that the statute requires disclosure of the actual findings and not merely the completion of the investigations. It sued to have the regulations declared invalid.
The trial court ruled in favor of Public Citizen, holding that HHS had misconstrued the statute and that the regulations were invalid. The trial court ordered HHS to notify the various PROs that they must disclose their findings of physician misconduct to patients who seek such information.
HHS appealed from both the finding of invalidity of its regulations and from the order requiring the PROs to notify the patients of physician misconduct. It asked the Court of Appeals to stay the trial court’s order that HHS notify the PROs that they would be required to disclose their findings to the Medicare patients. The AMA, along with the American Hospital Association and the Federation of American Hospitals, submitted an amicus curiae brief in support of the motion to stay. The Court of Appeals granted that motion and ordered the stay.
The Litigation Center, along with the American Hospital Association and the Federation of American Hospitals, subsequently filed an amicus curiae brief in support of the government regulations. The brief emphasized the desirability, as a matter of public policy, of maintaining peer review confidentiality.
The Court of Appeals affirmed, holding that PROs must notify Medicare beneficiaries of the results of their review. At minimum, the PROs must disclose whether the services provided met professionally recognized standards of health care quality.
Ubinas-Brache v. Dallas County Medical Society
68 S.W.3d 31 (Tex. App.)
Issue
The issue in this case is whether medical societies should have the right to determine their members' qualifications through good faith peer review proceedings.
AMA interest
The AMA supports peer review proceedings brought in good faith and conducted under proper procedures.
Case summary
Dr. Emmanuel E. Ubinas-Brache had been a member of the Dallas County Medical Society ("DCMS"), a branch of the Texas Medical Association ("TMA"). Each DCMS member agreed to be bound by the AMA's Principles of Medical Ethics and by the DCMS disciplinary procedures. The DCMS bylaws stated that disciplinary actions would be carried out in accordance with the TMA Disciplinary Procedures Manual. The TMA manual provided that hearings would be conducted through a "fair and good faith proceeding."
DCMS received three complaints of medical negligence against Dr. Ubinas from his patients, one of whom was a physician and a family friend. Following an investigation, the complaints were referred to at least three separate levels of review within DCMS. One of the reviewing bodies, the DCMS Board of Censors, recommended that Dr. Ubinas be expelled from DCMS and TMA because he had provided services to patients that were unnecessary and inconsistent with the clinical findings, had failed to deal honestly with his patients, and had engaged in deceptive practices. Dr. Ubinas appealed this recommendation to the DCMS Board of Directors. After a ten-hour hearing in which expert evidence was presented, witnesses were examined and cross-examined, and attorneys' arguments were made, the Board of Directors voted to expel Dr. Ubinas from DCMS.
Dr. Ubinas then appealed to the TMA Board of Councilors, which affirmed the expulsion. He next appealed to the AMA Council on Ethical and Judicial Affairs, which also affirmed the expulsion.
Following exhaustion of these appeals, Dr. Ubinas sued DCMS and TMA in Texas state court, alleging breach of contract and a denial of due process under the Texas Constitution. He contended that the proceedings were not kept confidential, that the evidence was not weighed properly, and that various persons involved in the prosecutorial function were also involved in the deliberative process. Dr. Ubinas sought only injunctive relief, but the trial court referred the matter to a jury. The jury found that Dr. Ubinas had been irreparably injured and that both DCMS and TMA had failed to provide him with "fundamental fairness and a fair and good faith proceeding." The trial court enjoined DCMS and TMA from expelling Dr. Ubinas or from reporting their action to the National Practitioner Data Base. Both sides moved for an award of attorneys' fees, but the court denied those motions.
DCMS and TMA each appealed to the Texas Court of Appeals. The Court of Appeals found that Dr. Ubinas had neither alleged nor proven malice on the part of DCMS, which was required under the applicable Texas statute. It reversed the judgment and remanded the case to the trial court for determination of whether attorneys' fees should be entered against Dr. Ubinas.
Following the remand, DCMS argued that Dr. Ubinas had brought a frivolous lawsuit. The court entered final judgment in favor of DCMS and TMA in the amount of $629,882.43 for attorneys' fees and defense costs. Dr. Ubinas is appealing.
Litigation Center/AMA involvement
The Litigation Center contributed toward the fees of the DCMS/TMA expert witnesses. The AMA itself paid for half of the legal expenses incurred by DCMS and TMA.
Virmani v. Novant Health, Inc., 2006 U.S. App. LEXIS 20906 (4th Cir. 2006)
(unpublished opinion)
The issue in this case was whether the federal courts should recognize a state law peer review privilege in a federal cause of action (employment discrimination).
The Presbyterian (later Novant) Hospital in Matthews, North Carolina, granted Dr. Virmani privileges to practice an as obstetrician-gynecologist at the hospital. Dr. Virmani punctured the iliac artery of a patient during a laparoscopic procedure resulting in severe complications. The hospital launched a review of all procedures for which Dr. Virmani was primarily responsible during his tenure at the hospital. The hospital found 24 of 102 procedures “problematic” and terminated Dr. Virmani’s privileges.
Dr. Virmani filed a state court action, claiming that the hospital had failed to adhere to its own bylaws during the peer review process. The North Carolina Court of Appeals ordered a new hearing. Following the second hearing, Dr. Virmani's privileges were terminated again.
Dr. Virmani then filed a federal court action, alleging that the hospital was motivated by racial and national origin bias in its decision to terminate his privileges. He also alleged state-based claims of intentional and negligent infliction of emotional distress.
During the course of discovery, Dr. Virmani requested that the hospital disclose twenty years’ worth of peer review records. Defendant moved for a protective order to bar the discovery, but the court denied the bulk of that request. Relying on Federal Rule of Evidence 501, the court ruled that state laws extending privileges to peer review records (such as the North Carolina statute) are not controlling in federal court, although the court could apply the state privilege law if it chose to do so. However, the court held that the benefit of providing a forum for redress of the alleged discriminatory acts overrode defendant’s interest in withholding the records of peer review proceedings. The court ordered the hospital to disclose its records relating to inquiries into the competency of obstetrician – gynecologists at the hospital.
The court also certified the question of peer review records disclosure to the United States Court of Appeals. The Fourth Circuit granted the defendant’s request for an interlocutory appeal to address the issue of peer review privilege. The North Carolina Medical Association and the Litigation Center filed an amicus brief on the defendant’s behalf.
The Fourth Circuit affirmed, holding against a peer review privilege. It found that the social policies favoring full evidentiary disclosure in an employment discrimination case outweighed the potential benefits that would have derived from a fully confidential peer review. Novant petitioned the Fourth Circuit for a rehearing en banc, but that motion was denied.
Content provided by: Office of the General Counsel