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Peer Review

Agster v. Maricopa County, 422 F.3d 836 (9th Cir. 2005)

Outcome:    Unfavorable

Issue
The issue here was whether a county  could properly 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 seeks to protect 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.

United States Supreme Court brief. 

Allred v. Saunders (UT S.Ct.)

Issue

The issues in this case are (a) whether Utah’s peer review confidentiality laws apply to the documents in a medical staff credentialing file and (b) how specifically peer review documents must be described in order to invoke the peer review confidentiality privilege.

AMA interest

The AMA believes that all documents submitted for purposes of peer review should be protected from legal discovery.

Case summary

Lisa Allred and her husband, Marlin Allred, accused Ronald J. Saunders, MD, a urologist, of having negligently performed a lithotripsy procedure, as a result of having misdiagnosed a pulmonary embolism. They sued Dr. Saunders for medical malpractice.   The Allreds subpoenaed American Fork Hospital, the hospital in which the incident took place, for (a) Dr. Saunders’s medical staff credentialing file and (b) the “file or case investigation records” pertaining to Mrs. Allred’s care.

Dr. Saunders moved for a protective order and/or to quash the subpoena, to the extent it sought production of the hospital’s credentialing file. He asserted that the Utah privilege against production of medical peer review documents protected against such production. In support of his motion, he submitted an affidavit from the medical director at American Fork Hospital. The affidavit indicated that the credentialing file consisted of Dr. Saunders’s applications for original and then renewal privileges, documents confirming his graduation from medical school, board certification documents and personal references, and similar documents relating to his general competence as a physician. The credentialing file did not include documents concerning the quality of Dr. Saunders’s care for specific patients or concerning identifiable incidents in which Dr. Saunders’s competence may have been questioned.

The court found that Dr. Saunders’s motion should be governed by Utah Code § 26-25-1(g) and by Utah Rule of Civil Procedure 26(b)(1). Section 26-25-1(g) states that the peer review privilege includes “data relating to the condition or treatment of any person.” The court then found the records in Dr. Saunders’s credentialing file “appear[ed] to be about Dr. Saunders, and not about any particular patient.” Thus, these records concerned Dr. Saunders’s general qualifications and did not “relat[e] to the condition or treatment of any person.” Accordingly, they fell outside § 26-25-1(g) and were not privileged. The court ordered their production.

Both Dr. Saunders and the hospital moved for a protective order and/or to quash the subpoena, to the extent it sought production of any incident reports concerning Mrs. Allred’s treatment. They supported their motion with an affidavit from a hospital official, which acknowledged that the hospital had prepared an incident report in connection with Mrs. Allred’s care. The affidavit generally described the hospital review process and concluded that the report in question had been prepared as part of that process.

The court observed that this latter affidavit was “vague.” It further observed that, while the medical peer review privilege did exist and the affidavit at least arguably established that the privilege might apply to the incident report, the applicability of that privilege should not depend on the unilateral assertions of the parties claiming the privilege. Accordingly, the court ordered that the alleged peer review documents be submitted for in camera review as to whether the privilege should apply.

Dr. Saunders and American Fork Hospital appealed to the Utah Supreme Court. Discovery of Dr. Saunders’s credentialing file and of the Allred incident report was stayed pending resolution of the appeal.

Litigation Center involvement

The Litigation Center, along with the Utah Medical Association filed an amicus brief in support of Dr. Saunders and American Fork Hospital.

Utah Supreme Court brief

Atteberry v. Longmont United Hospital, 221 F.R.D. 644 (D.Colo. 2004)

Outcome:    Very Unfavorable

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.

United States District Court for the District of Colorado.

Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001)

Also under Expert witnesses and Medical society advocacy

Outcome:    Very favorable

Issue

The issue in this case was whether a medical society could discipline one of its members for testifying falsely as an expert witness.

AMA interest

The AMA supports the right of medical associations to set standards for honest expert testimony by physicians and to sanction those members who violate these standards.

Case summary

The American Association of Neurological Surgeons (AANS) had suspended Dr. Austin from membership for six months because, it found, he had testified against another physician in a suit alleging professional liability without a reasonable basis for his testimony.  His testimony violated the AANS code of ethics. 

Dr. Austin sued AANS, and the trial court held against him.  The Seventh Circuit Court of Appeals affirmed the lower court’s ruling, holding that, since AANS had accorded Dr. Austin due process and had acted in good faith, he had no grounds for complaint.  There is nothing wrong, it said, in having a professional association sanction one of its members for irresponsible testimony.  In fact, professional self-regulation furthers, rather than impedes, the cause of justice.  Dr. Austin’s testimony at trial was a type of medical service, and the poor quality of that medical testimony probably reflected the generally poor quality of his medical judgment.  Moreover, because membership in AANS is not a precondition to the practice of neurosurgery, his membership did not implicate an important economic interest that might otherwise justify judicial intervention.

Litigation Center involvement

The Litigation Center filed an amicus curiae brief to support AANS.  The brief argued that a physician’s expert medical testimony is an aspect of medical practice.  The AANS ethical code was therefore a legitimate, good faith guideline for proper professional conduct.  The brief also argued that AANS had a constitutionally protected right to choose those persons with whom its members would associate. 

United States Court of Appeals for the Seventh Circuit brief.

Burrows v. Schug, 528 U.S. 867 (1999)

Also under EMTALAEmergency services

Outcome:  Very unfavorable

Issue

The issue in this case was whether physician peer review records should be discoverable in the federal courts.

AMA interest

The AMA believes that peer review data should be kept confidential.

Case summary

An eleven-month old child died while being transferred between hospitals.  Dr. Schug, an emergency room physician, had ordered the transfer.  The child’s parents sued Dr. Schug for common law malpractice and for violation of EMTALA.  Subsequently, his actions were reviewed by his hospital’s peer review committee.

Under California law, the peer review records are not discoverable.  However, the United States District Court held that, because part of the action was based on EMTALA, those records would be discoverable.  The Ninth Circuit, in an unpublished decision, affirmed the District Court order.  Dr. Schug petitioned to the United States Supreme Court for a writ of certiorari.  The Supreme Court denied the petition.

Litigation Center involvement

The Litigation Center, the California Medical Association, and various other organizations filed an amicus brief to the Supreme Court urging a grant of certiorari.

Clow v. Webber Hospital Association (Maine Super. Ct.)

Also under Hospitals

Outcome:  Very unfavorable

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)

Also under Due process and Hospitals

Outcome:    Unfavorable

Issue

The issue in this case was whether a medical peer review action should proceed without judicial interference, notwithstanding the physician’s claimed denial of due process.

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.

Supreme Court of Colorado brief.

El-Attar v. Hollywood Presbyterian Medical Center, 56 Cal. 4th 976 (Cal. 2013)

Also under Medical staff

Outcome:    Unfavorable

Issue

The issue in this case was whether, under California law, a hospital governing body, rather than a Medical Executive Committee (MEC) could appoint a Judicial Review Committee (JRC) to adjudicate a denial of medical staff privileges.

AMA interest

The AMA supports fairness in peer review proceedings, medical staff self-governance, and strict compliance with medical staff bylaws.

Case summary

Osamah A. El-Attar, MD is board certified in internal medicine and cardiology and has been a member of the medical staff at Hollywood Presbyterian Medical Center since 1975.  Beginning in about 2000, he began to criticize certain hospital practices regarding patient care.  In 2002, he, along with other members of the medical staff, signed a petition to remove the hospital’s chief executive officer (CEO).  Also that year, the hospital governing board reviewed the quality of care that Dr. El-Attar provided to his patients, and it hired two independent medical review groups to assist in this process.  The reviewers found that Dr. El-Attar had engaged in disruptive behavior and his medical care in several respects fell below accepted professional standards.

Shortly before his medical staff privileges were due to expire, Dr. El-Attar submitted a periodic application to the MEC for reappointment.  The MEC recommended that he be reappointed, but the hospital governing board ordered that the application be denied and it directed the CEO to suspend his privileges.  The CEO then requested the MEC to ratify the board’s decision to suspend Dr. El-Attar, but the MEC refused to do so.  The CEO notified Dr. El-Attar that his clinical privileges were summarily terminated, but the MEC terminated the suspension.  Shortly thereafter, the hospital denied Dr. El-Attar’s application for reappointment.  Dr. El-Attar requested a judicial peer review of the denial of his privileges.

The MEC met and granted Dr. El-Attar’s request for a judicial peer review.  However, it also resolved to “leave … the actions relating to the Judicial Review Hearing procedures to the [hospital] Governing Board.”  The hospital submitted a list of six charges of misconduct and substandard practice against Dr. El-Attar.  It also selected a hearing officer and six members of the medical staff to serve as the JRC.

Following approximately 30 evidentiary hearing sessions, the JRC made specific findings on all six of the charges against Dr. El-Attar.  It found three of the charges substantiated by a preponderance of the evidence, concluding –

“Under all circumstances of this case … the … decision of the Governing Board to deny Dr. El-Attar’s application for reappointment to the Medical Staff of this Hospital was reasonable and warranted, but the Committee notes that if it had been the initial decision maker, it would have pursued an intermediate resolution.”

Based on this determination, the JRC ratified the denial of Dr. El-Attar’s reappointment to the medical staff.

Dr. El-Attar appealed the JRC decision on several grounds, including the MEC’s delegation to the hospital of the power to select the members of the JRC.  The trial court denied his appeal and entered judgment for the hospital.  He then appealed to the California Court of Appeal.

The Court of Appeal found that Dr. El-Attar had been deprived of a fair hearing under common law, the medical staff bylaws, and California statutes.  The hospital’s medical staff bylaws provided that the MEC was to appoint the JRC and the hearing officer, and there was no provision for the MEC’s delegating this appointment power to the hospital.  Thus, the court held that the MEC lacked authority to delegate its appointment power to the hospital.  It did not consider the various claims of error other than the procedure used to appoint the JRC.  The Court of Appeal reversed the trial court judgment and remanded with new instructions to issue an order against the hospital and grant Dr. El-Attar a new peer review hearing.

The hospital appealed to the California Supreme Court.  In its order granting review, the Supreme Court identified the following issues:

“(1) Could the executive committee of the hospital medical staff delegate to the hospital governing board its authority to select the hearing officer and the physician members of the peer review panel to hear a physician’s challenge to the governing board’s denial of his application for reappointment to the hospital medical staff? (2) If the hospital by-laws did not permit this procedure, was the peer review panel selected by the governing board “improperly constituted,” requiring a new peer review procedure conducted by a new hearing panel selected by the executive committee?”

On June 6, 2013, the California Supreme Court reversed the Court of Appeal decision.  It held that the medical staff bylaws were violated in connection with the selection of the peer review panel and of the hearing officer.  Nevertheless, the violation was not sufficiently material as to deprive Dr. El-Attar of a fair peer review hearing.  The case was remanded for consideration of Dr. El-Attar's other bases for claiming that he had been unjustly deprived of his medical staff privileges.


Litigation Center involvement

The Litigation Center, along with the California Medical Association filed an amicus brief in the California Supreme Court.  The brief argued that when the medical staff bylaws expressly vest the MEC with authority to appoint the JRC, only the MEC should be allowed to make such appointment.  Further, the brief contended that only a MEC-appointed JRC can ensure the physician receives a fair hearing, free from potential conflicts of interest and bias.

California Supreme Court brief

In re: Fairview University Medical Center, 590 N.W.2d 150 (Minn. Ct. App. 1999)

Outcome:     Very favorable

Issue

The issue in this case was whether the Minnesota peer review privilege barred the state medical board from discovering peer review documents.

AMA interest

The AMA will help state medical societies defend against attacks to their states’ peer review processes.

Case summary

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 appellate court affirmed, holding that, under Minnesota law, peer review proceedings are not discoverable, even by the BMP.

Litigation Center involvement

The Litigation Center filed an amicus curiae brief, which opposed BMP’s attempt to discover peer review information.

Fullerton v. Florida Medical Association, 938 So.2d 587 (Fla. Dist. Ct. App., 1st Dist 2006)

Also under Abusive litigation against physicians and Expert witnesses

Outcome:     Somewhat unfavorable

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.

Florida Court of Appeal brief.

Illinois Department of Financial and Professional Regulation v. Walgreen Co.

2012 Ill. App. LEXIS 423 (Ill. App. 2012)

Also under Patient Safety Act

Outcome:  Very favorable

Issue

The issue in this case was whether the privilege against non-disclosure set forth in the Federal Patient Safety and Quality Improvement Act of 2005 (“Patient Safety Act”) preempts Illinois state laws.

AMA interest

The AMA supports federal legislation that will enhance protection of peer review information.

Case summary

Under the Illinois Pharmacy Act, the Illinois Department of Financial and Professional Regulation (“IDFPR”) is charged with regulating and licensing pharmacists and pharmacies.  It is authorized to conduct investigations and, where appropriate, discipline licensees for the protection of public health.

Following a report that three of its pharmacists may have violated the Pharmacy Practice Act, the IDFPR issued three administrative subpoenas to Walgreens.  The subpoenas required that Walgreens produce “[a]ll incident reports of medication error” involving one of the pharmacists.  In response, Walgreens indicated that the only documents it had which met that description were reports it had prepared under the Patient Safety Act, for purposes of submission to a Patient Safety Organization (“PSO”).  Walgreens objected to production of the incident reports, arguing that they were privileged from discovery under the Patient Safety Act.

The IDFPR sought a court order to compel Walgreens to produce the incident reports, but the trial judge found that the incident reports were, indeed, privileged from discovery under the Patient Safety Act.  It sustained Walgreens’ objection and dismissed the case.  The IDFPR appealed, but the Illinois Appellate Court affirmed.

Litigation Center involvement

The Litigation Center, along with the Illinois State Medical Society joined in an amicus brief in support of the Patient Safety Act privilege.

Illinois Appellate Court brief.

Ishoo v. University of New Mexico Hospital (N.M. S.Ct.)

Outcome:    Unfavorable

Issue

The issue in this case was whether peer review proceedings should be privileged from legal discovery.

AMA interest

The AMA seeks to preserve the confidentiality of the peer review process.

Case summary

The University of New Mexico Hospital (UNMH) hired Dr. Edwin Ishoo as an assistant professor in its Department of Surgery, Division of Otolaryngology.  Dr. Ishoo became embroiled in a dispute with personnel of a separate hospital, and UNMH initiated a peer review action against him.  The initial peer review panel found against Dr. Ishoo, but before the full peer review process could be completed Dr. Ishoo and UNMH terminated their arrangement.

Dr. Ishoo subsequently sued UNMH for breach of contract in a state court.  According to Dr. Ishoo's complaint, the "professional administrative standards" of the American Medical Association were "material terms" of his employment contract with UNMH, and UNMH had violated those standards.  Dr. Ishoo also alleged that the peer review action had been motivated by his having been born in Iran.

Dr. Ishoo asked for extensive discovery from UNMH, including depositions of all or almost all of the physicians involved in the peer review process.  UNMH objected to this discovery.  In considering the objection, the trial court found that the success or failure of Dr. Ishoo's lawsuit was likely to depend on the requested discovery.  The trial court overruled the objection and compelled compliance with Dr. Ishoo's discovery requests.

UNMH then petitioned the New Mexico Supreme Court for a "writ of prohibition and/or superintending control" to prevent the discovery from going forward. UNMH also asked the AMA to file an amicus curiae brief with the New Mexico Supreme Court.  However, the Supreme Court summarily denied the UNMH petition.

Litigation Center involvement

Because of the AMA policies governing peer review and peer review confidentiality and because of Dr. Ishoo's assertion that his rights should be governed by AMA policies, the Litigation Center and the New Mexico Medical Society asked the New Mexico Supreme Court for leave to file an amicus curiae brief.  However, the medical societies' motion became moot and was denied when the New Mexico Supreme Court denied the UNMH petition.

Kamelgard v. American College of Surgeons (Ill. App.Ct.)

Outcome:    Very favorable

Issue

The issue in this case was whether a medical association could protect the identities of physicians who participated in an ethical investigation of one of its members.

AMA interest

The AMA believes that medical associations should be entitled to establish reasonable ethical standards that require integrity in the rendition of expert witness testimony.  It also supports the confidentiality of medical peer review proceedings, including proceedings within the medical associations themselves. 

Case summary

Joseph Kamelgard, MD, a member of the American College of Surgeons (ACS), sued ACS to discover the identities of three physicians who had participated in an ACS ethical investigation of him.  The investigation had been brought about by Dr. Kamelgard's allegedly unfounded expert witness testimony in a medical malpractice lawsuit against another ACS member.

The trial court dismissed Dr. Kamelgard's lawsuit for a variety of reasons, including the protections afforded by the Illinois peer review confidentiality law.  Dr. Kamelgard appealed, and the Illinois Appellate Court affirmed.

Litigation Center involvement

The Litigation Center and the Illinois Medical Society filed an amicus curiae brief to support ACS.

Illinois Court of Appeals brief.

Levin v. WJLA-TV, 564 S.E.2d 383 (Va. 2002)

Also under Physician privacy Rights

Outcome      Very favorable

Issue

The issue in this case was whether peer review proceedings should be privileged from legal discovery.

AMA interest

The AMA seeks to preserve the confidentiality of the peer review process.

Case summary

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 judge 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. She believed that the privilege applies 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.

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 grants an unqualified privilege to peer review records, (2) the privilege belongs to the hospital and cannot 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.

Litigation Center involvement

The Litigation Center, along with the Medical Society of Virginia filed an amicus brief in the Virginia Supreme Court, supporting the hospital and a broad reading of the peer review privilege. 

Mileikowsky v. Superior Court (Cal. App. 2001)

Also under Due process, Hospitals, and Medical staffs

Outcome:    Unfavorable

Issue

The issue in this case was whether a hospital was required to provide a timely peer review hearing before suspending a physician’s medical staff privileges.

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.

Mileikowsky v. West Hills Hospital, 203 P.3d 113 (Cal. 2009)

60 Cal.Rptr.3d 657 (Cal.App. 2007)

Outcome:    Very favorable

Issue

The issue in this case was whether a hearing officer could terminate a peer review proceeding on his own authority, after the accused physician violated a prehearing discovery order.

AMA interest

The AMA believes that physicians should be ultimately responsible for all peer review of medical care.

Case summary

Dr. Mileikowsky applied for reappointment to the medical staff at West Hills Hospital, but his reappointment was denied. He appealed the denial of his reappointment privileges to a peer review panel. The prosecuting attorney asked Dr. Mileikowsky to produce documents in discovery, but he failed to do so. The prosecuting attorney then asked the hearing officer to dismiss Dr. Mileikowsky’s appeal. The hearing officer granted the motion and dismissed the peer review action, based on his own authority (not the authority of the peer review panel). Dr. Mileikowsky appealed to the hospital governing board, but the governing board rejected his appeal and adopted the hearing officer’s decision.

Dr. Mileikowsky then sued the hospital, the medical staff, and the hearing officer. He asserted that the hearing officer had been unauthorized to terminate the peer review without the explicit approval of the peer review panel. The trial court rejected Dr. Mileikowsky’s objection and entered judgment for the hospital. Dr. Mileikowsky appealed to the California Court of Appeal.

The Court of Appeal reversed and remanded, finding that only a peer review committee can render a decision on the merits of the peer review, and the decision to deny the peer review, although taken on purely procedural grounds, had been a decision on the merits. The hospital then appealed to the California Supreme Court.

By a split decision, the California Supreme Court ruled in Dr. Mileikowsky’s favor, finding that the applicable California statute did not empower the hearing officer to terminate the peer review.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, filed an amicus curiae brief to the California Supreme Court, arguing that only the peer review body itself can terminate a peer review.

California Supreme Court brief.

Podgurski v. Grey, 189 F.ed 461 (2nd Cir. 1999) (unpublished opinion)

Outcome:     Unfavorable

Issue

The issue in this case was whether the Connecticut peer review statute prohibited lawsuits altogether against physicians who reviewed their colleagues’ professional performance or whether the statute merely protected those physicians from liability after a full trial on the question of the peer reviewers’ good faith.

AMA interest

The AMA encourages physicians to participate in the peer review process.

Case summary

Podgurski was a resident physician. Her supervisor smelled alcohol on her breath during a performance evaluation and referred the matter for peer review.

Podgurski sued Grey, one of her reviewer, and the peer review organization for defamation, invasion of privacy, and intentional and negligent infliction of emotional distress. The defendants moved for summary judgment, but that motion was denied. The district found a factual question as to whether the defendants were acting in good faith. The defendants appealed the denial of their summary judgment motion.

The Court of Appeals 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.

Litigation Center involvement

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, supporting the defendants.

Public Citizen, Inc. v. United States Department of HHS, 332 F.3d 654 (D.C. Cir. 2003)

Outcome:     Very unfavorable

Issue

The issue in this case was whether regulations of the United States Department of Health and Human Services (HHS) providing that peer review investigations of Medicare patients were to be kept confidential were valid.

AMA interest

The AMA believes that peer review proceedings should be kept confidential.

Case summary

The Medicare Act provided that, when there was some indication of substandard care for a patient covered by Medicare, the situation was to be investigated by a Peer Review Organization (“PRO”). The statute further provided that the results of such investigations were to be submitted to the patient (or a representative of the patient) whose care was at issue, in accordance with HHS regulations. The HHS regulations provided that, when such investigations were made, the patient was to be notified when the investigation had been completed. However, the PRO was not to notify the patient of the actual findings (e.g., proper care, substandard care, or negligence) unless the person or the persons being investigated consented to such disclosure. Public Citizen contended that the HHS regulations were invalid, because the statute required disclosure of the actual finding and not merely the completion of the investigation. 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 the regulations were invalid. The trial court ordered HHS to notify the various PROs to disclose their findings of physician misconduct to patients who seek such information. HHS appealed, but the Court of Appeals affirmed.

Litigation Center involvement

The Litigation Center, along with the American Hospital Association and the Federation of American Hospitals, filed amicus curiae briefs in both the District Circuit and the Court of Appeals. The briefs supported the government regulations and emphasized the desirability of maintaining peer review confidentiality.

Tibbs v. Bunnell; Norton Hospitals v. Cunningham (Ky. S.Ct.)

Also under Patient Safety Act

Issue

The issue in these cases is whether the Patient Safety Act privilege against non-disclosure preempts Kentucky state law, which would otherwise allow plaintiffs in medical injury lawsuits to discover information voluntarily reported to Patient Safety Organizations (PSOs).

AMA interest

The AMA supports federal legislation that will enhance protection of peer review information.

Case summary

In each of the present cases, a patient died while being treated for a medical condition at a Kentucky hospital, and the respective estate for the decedent subsequently sued various health care providers for malpractice.  Also in each case, the hospital had prepared an incident report and submitted the report to a PSO for the purpose of compiling and analyzing the data to improve health care quality.  During discovery, the estate asked for production of these incident reports.  The defendants objected to the production on the basis of the Patient Safety Act privilege, and the trial court ruled the privilege inapplicable.

The respective defendants then filed an interlocutory appeal with the Kentucky Court of Appeals.  They asserted that, even if Kentucky law would otherwise have allowed production of the PSO incident report, the Patient Safety Act preempted the state law.  The Court of Appeals held that the Patient Safety Act did preempt Kentucky law.  However, the court continued, the privilege would only apply to the extent the incident reports contained a “self-examining analysis.”  The defendants in these cases have appealed to the Kentucky Supreme Court, where they contend that the incident reports are fully privileged, regardless of whether they contain a self-examining analysis and regardless of whether they include information beyond such analysis.

Notwithstanding the appeal of this discovery-related issue, the underlying cases continued in due course. Ultimately, the Cunningham v. Norton Hospitals case was tried to a jury, which held in favor of Norton Hospitals. Cunningham elected not to appeal, and on September 26, 2013, the Kentucky Supreme Court dismissed the Norton Hospital appeal as moot. However, the Tibbs v. Bunnell appeal continues.

Litigation Center involvement

The Litigation Center, through the AMA and the Kentucky Medical Association, filed amicus briefs in the Kentucky Supreme Court in each of these cases.  The briefs urged recognition and an expansive reading of the Patient Safety Act privilege.

Kentucky Supreme Court brief in Tibbs case

Kentucky Supreme Court brief in Norton case

Ubinas-Brache v. Dallas County Medical Society, 261 S.W.3d 800 (Tex. App. 2008)

68 S.W.3d 31 (Tex. App. 2001)

Also under Medical society advocacy

Outcome:    Favorable

Issue

The issue in this case was 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, as 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 appealed.

The Texas Court of Appeals reversed the fee award, finding that although Dr. Ubinas had lost the case, his suit had not been frivolous.  On February 17, 2009, the Texas Supreme Court refused to hear a requested appeal from the Court of Appeals

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 total legal expenses.

Virmani v. Novant Health, Inc., 194 Fed. Appx. 143 (4th Cir. N.C. 2006) (unpublished opinion)

Outcome:     Unfavorable

Issue

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).

AMA interest

The AMA supports the confidentiality of medical peer review proceedings.

Case summary

Presbyterian (later Novant) Hospital in Matthews, North Carolina, granted Dr. Virmani privileges to practice an as obstetrician-gynecologist. 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. The hospital 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) were not controlling in federal court, although the court could apply the state privilege law if it chose to do so. The court further held that the need to fairly redress the alleged discriminatory acts overrode the 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 hospital’s request for an interlocutory appeal to address the issue of peer review privilege.

The Fourth Circuit affirmed, holding against the 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. The hospital petitioned the Fourth Circuit for a rehearing en banc, but that motion was denied.

Litigation Center involvement

The Litigation Center, along with the North Carolina Medical Association filed an amicus brief on the hospital’s behalf, supporting the peer review privilege.