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Newspaper wins right to publish peer review

The Denver hospital that sought a restraining order doesn't plan to appeal the current ruling and is assessing its lawsuit against the paper.

By Tanya Albert, amednews staff. Nov. 10, 2003.

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The First Amendment supersedes laws in place to keep peer review confidential, a federal judge ruled in October.

U.S. District Judge Walker D. Miller for the District of Colorado denied a hospital's request for a temporary restraining order against Denver's Rocky Mountain News. The University of Colorado Hospital Authority in Denver sought to stop the newspaper from publishing information contained in a report prepared as part of a peer review investigation.

The hospital also asked that the restraining order prevent the paper from using the report, received in the mail from an anonymous source, to develop any stories.

The result, hospital officials said, is that physicians may be less likely to participate in peer review -- or won't be as forthcoming with information -- if they believe that what they say could land in a newspaper.

"The judge needed to weigh two interests -- the privacy interest of patients whose medical records were discussed and the statutory confidentiality of peer review," said Frederick Y. Yu, the attorney representing the hospital. "The judge found that the First Amendment trumps those two rights."

The hospital cited the Colorado peer review statute, the Health Care Quality Improvement Act and the Heath Insurance Portability and Accountability Act as reasons why the paper shouldn't be allowed to publish or use information from the report.

Patients whose names and medical conditions were discussed in the peer review report are entitled to privacy under federal laws, the hospital argued. In addition, witnesses who testified as part of the investigation were told that the information would be kept confidential and that their statements would not be reported to their supervisors.

"These expectations are now being threatened," the hospital argued in court papers. "An unnamed individual has violated Colorado and federal law by mailing a copy of the report."

From the bench, Miller said the arguments the hospital made for patient privacy were legitimate. But, he said, case law concerning the First Amendment is strong and shows that the public has a right to know about discipline in the medical profession, even if it does invade someone's privacy.

"You simply cannot avoid the law -- and it's long been the law in this circuit -- that there is a public interest in the regulation of releasing information of the medical profession, and that regulation is newsworthy and it is information that can invade the privacy," Miller said.

Laws favor newspapers

The decision, which applies only in the District of Colorado, was not surprising.

Courts traditionally have ruled in favor of freedom of the press. Perhaps the most notable decision came from the U.S. Supreme Court in 1971, when it ruled 6-3 against restraining The New York Times and Washington Post from printing the "Pentagon Papers" during the Vietnam War.

Government officials in that case argued that they needed time to determine whether publication would jeopardize national security, but the high court disagreed that the press should be restrained. Since then, the courts have ruled against prior restraint in cases that involved privacy interest, the Rocky Mountain News argued in court documents.

Imposing "prior restraint" on the publication would violate the First Amendment, the newspaper stated. The News isn't subject to rules against disclosing medical information, or any criminal liability for it, under state or federal laws, the paper added.

"Although it is certainly true that patients have privacy interests, it is for the patients -- and not the university -- to decide whether those interests have been or will be infringed by any article published by the News," the paper said in its brief to the court. "If the News, in exercising its editorial judgment, publishes private information concerning a patient, it recognizes that it does so potentially at its peril. However, if a patient or his or her guardian consents to the publication of matters relating to his or her care at the hospital ... no privacy interest will be violated."

Miller used an established four-pronged test to determine whether the Rocky Mountain News should be stopped from using the peer review report. The judge considered whether:

• The hospital would suffer irreparable injury unless an injunction were issued.
• There was proof that the threat and injury to the hospital outweighed whatever damage the proposed injunction would cause the newspaper.
• The injunction would be "adverse to the public interest."
• The injunction would change the status quo or achieve the result that the hospital ultimately sought at the end of the litigation.

"There isn't any question that what's asked is a prior restraint," Miller said. "And the law is clearly that that's only acceptable in exceptional circumstances, only where the evil that would result from the publication is great and certain and can't be militated by less intrusive measures."

Worries about peer review's future

The request for a temporary restraining order was only part of the hospital's lawsuit against the Rocky Mountain News. The hospital is also seeking a permanent injunction to stop the newspaper from publishing any part of the report.

Yu said hospital officials don't plan to appeal the decision and are assessing whether they will continue the lawsuit against the paper.

"The real concern is that no one is going to come forward and participate in peer review if someone who is not happy will send it to a newspaper," the attorney for the hospital said. "Peer review confidentiality is typically provided by the Legislature so that people won't be reluctant to provide candid information."

An attorney for the newspaper declined to comment beyond what already is in the court records.

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