Peer review records opened in physician's discrimination suit

The federal court noted that all states recognize confidentiality in peer review proceedings, but legislatures may not have considered the impact on civil rights cases.

By Amy Lynn Sorrel, AMNews staff. July 16, 2007.

Peer review records are open game in federal discrimination lawsuits, a federal appeals court recently ruled.

A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals in June ordered Houston Medical Center in Georgia to turn over seven years of peer review records to urologist Russell E. Adkins, MD. The black surgeon alleged that because of his race, he was held to a higher level of scrutiny than his colleagues when a peer review committee terminated his privileges.

The court recognized the patient safety benefits of the confidential process.

But judges said the overriding goal of "root[ing] out invidious discrimination" was more important than keeping peer review private to promote candid discussions about doctors' performance without fear of a lawsuit.

"Here we are confronted with a claim of racial discrimination within the peer review process itself," the opinion states.

The only way Dr. Adkins can prove his case "is to compare his peer review with the peer review files of other physicians," judges concluded.

Though the court confined its decision to federal civil rights actions, some doctors worry that plaintiffs might use it to circumvent peer review privilege to pursue other kinds of lawsuits. Others, however, praised the court for lifting the veil on peer review committees' attempts to use privilege to shield unfair treatment of certain doctors.

"The question is, does this now allow other plaintiffs just to file federal discrimination cases in an attempt to get these records to file other types of cases?" said Donald J. Palmisano Jr., general counsel to the Medical Assn. of Georgia. As an example, he pointed to medical liability suits, which normally would be subject to the privilege.