Federal court rules peer review report can be reviewed

In the Courts. By Bonnie Booth, AMNews correspondent. Nov. 14, 2005.

The U.S Supreme Court's recent refusal to delineate a federal privilege for medical peer review proceedings forces officials in Maricopa County, Ariz., to turn over mortality review documents to plaintiffs in a medical malpractice lawsuit. The peer review took place after the death of an inmate who had been in custody.

In August, the 9th U.S. Circuit Court of Appeals ordered the Maricopa County officials to share the information during discovery. The appellate court ruled that federal law "recognizes no privilege of peer review in the context of a case involving the death of a prisoner."

The U.S. Supreme Court recently said it would not hear an appeal, leaving the 9th Circuit decision in place.

Carol Ann Agster and her husband are suing Maricopa County, its sheriff's department, Maricopa County Correctional Health Services and various individuals in connection with an Aug. 6, 2001, incident that resulted in the death of their son, Charles J. Agster III. Correctional Health Services employees treated Agster while he was at the jail. As required by its own policies and by the standards of the National Commission on Correctional Health Care, the group conducted a "critical incident report," after the inmate's death.

When a U.S. District Court ordered the report be turned over to the Agsters, Maricopa County appealed.

After the appellate court upheld the lower court's decision, the county appealed to the U.S. Supreme Court.

In an amicus brief filed with the Supreme Court, the American Medical Association and the Arizona Medical Assn. noted that important public interests are served by maintaining the confidentiality of medical peer review proceedings. They argued that those interests are undermined by the federal courts' refusal to recognize "a privilege for peer review proceedings conducted in good faith."