LeMasters v. Christ Hosp.

From Conservapedia

In LeMasters v. Christ Hosp., a federal district court rejected a privilege asserted under Ohio law and ordered a hospital to provided peer review materials in discovery.

The Court surveyed the split in opinion about whether state law can establish a privilege in peer review materials:

Although this is an issue of first impression in this district, other districts are split as to whether a hospital peer review privilege should be adopted in federal question cases. For example, in Cohn v. Wilkes General Hospital, 127 F.R.D. 117 (W.D.N.C. 1989), a chiropractor sued a hospital and others claiming that they conspired to deny him medical staff privileges in violation of the Sherman Anti-Trust Act and state unfair competition law. HN5Go to the description of this Headnote.A North Carolina statute provides that a medical review committee's proceedings and records are privileged. N.C.Gen. Stat. § 131E-76(2)(1985). The Court, relying on the existence of the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., concluded that medical peer review proceedings and records are privileged in both state and federal proceedings. Cohn v. Wilkes General Hospital, 127 F.R.D. at 120-21.

Similarly, in Mewborn v. Heckler, 101 F.R.D. 691 (D.D.C. 1984), a Federal Tort Claims Act case, the Court refused to compel the production of peer review proceedings with respect to the decedent's treatment because the information sought was available through hospital records and reports. A District of Columbia statute provides for a peer review privilege absent a showing of extraordinary necessity. D.C. Code § 32-505 (1978). The Court, in concluding that production should not be compelled, stated:

Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. Constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor's suggestion will be used as a denunciation of a colleague's conduct in a malpractice suit.

Mewborn v. Heckler, 101 F.R.D. at 692 (quoting Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970), aff'd, 156 U.S. App. D.C. 199, 479 F.2d 920 (1973)).

On the other hand, in Dorsten v. Lapeer County General Hospital, 88 F.R.D. 583 (E.D. Mich. 1980), the plaintiff brought a sex discrimination action against a hospital and several doctors affiliated with the hospital alleging wrongful denial of plaintiff's application for physician privileges. The court granted the plaintiff's motion to compel production of peer review reports in spite of a Michigan statute purporting to establish an "absolute privilege" for peer review reports conducted by hospital review boards. Id. After noting that the court must balance the plaintiff's need for discovery and the interests protected by the federal statute against the interests protected by the state privilege, the court concluded that:

The Court then ruled that "[t]he balance weighs in favor of discovery by Plaintiff. Plaintiff's overall claim is one for disparate treatment. It is difficult to perceive how any Plaintiff can be expected to argue and prove such a case without access to the type of review and decision-making processes undertaken in comparable situations with Plaintiff's male 'counterparts.' Id. at 586. Also see Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981); Doe v. St. Joseph's Hospital, 113 F.R.D. 677, 42 F.E.P. 1565 (N.D. Ind. 1987)."

The Court emphasized how the defendants failed to provide "even a scintilla of evidence substantiating" its claims that "maintaining the confidentiality of peer review proceedings is paramount to ensuring quality health care and that permitting discovery of such information will undermine the health care system by discouraging candid appraisals of other physicians," and that "the hospital will no longer be able to persuade its physicians to participate in peer review of the proceedings are discoverable."

The Court noted that "most physicians feel an ethical duty to the profession and to the public to keep the standard of health care high" and "if participating in peer review proceedings periodically is made a requirement for maintaining staff privileges, it is doubtful that many physicians will uproot their practices simply to avoid serving on a peer review committee."

The Court also rejected the argument "that the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., reflects a federal policy precluding the discovery of peer review materials. Section 11137(b) of the Act provides for the confidentiality of certain information." Describing this argument as being "without merit," the Court held that:

First, the health Care Quality Improvement Act of 1986 simply serves to create a national repository for information about a physician's past performance. See Manthe v. Vanbolden, 133 F.R.D. 497 (N.D. Tex. 1991). A hospital may then request information regarding a certain doctor as it proceeds through the hiring or reviewing process. Id. The information provided to the repository then remains confidential unless state law permits disclousre. Id. Therefore, by its own terms, the Act does not apply to the matters currently before this Court.

Second, pursuant to 42 U.S.C. § 11111, the protections extended to those participating in peer review "shall not apply to damages under any law of the United States or any State relating to the civil rights of any person or persons, including the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Acts, 42 U.S.C. § 1981 et seq." 42 U.S.C.A. § 11111(a)(1) (1991 Supp.). As Representative Waxman, a principal sponsor of the Act, stated, "The immunity provisions have been restricted so as not to protect illegitimate actions taken under the guise of furthering the quality of health care. Actions that violate civil rights laws or actions that are really taken for anticompetitive purposes will not be protected under this bill." 141 Cong. Record H 9957 (Daily Ed. Oct. 14, 1986). Therefore, HN8Go to the description of this Headnote.the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq., cannot be construed as limiting discovery in a sex discrimination action.

Finally, the Act applies only when the physician is afforded all the protections set forth in § 11112(a) of the Act. See 42 U.S.C. § 11111(a)(1). Section 11112(a)(3) requires adequate notice and a hearing as defined in § 11112(b). Pursuant to § 11112(b)(3)(C)(i), the physician in question is entitled to be represented by an attorney at the hearing unless the physician voluntarily waives that right. However, in the case at bar, a representative of the Christ Hospital Ad Hoc hearing Committee informed Dr. LeMasters by letter that:

The Bylaws of the Medical Staff, in Article XV, Section 15.50, Paragraph 15.510, address legal representation at a medical staff hearing and state, in part, that, ". . [sic]

The affected practitioner, the Executive Committee, or the Board shall not be represented at the hearing by an attorney-at-law unless the hearing committee at its discretion permits both sides to be represented by counsel." The Ad Hoc Hearing Committee appointed to hear your medical staff appeal on February 17, 1990, has considered this matter and feels that the hearing proceedings will be more expedient and focused without the presence of attorneys.

Ex. 2 to doc. 59. Therefore, even if the Act applied to civil rights actions (which it does not), it would not apply to this action. Accordingly, we conclude that the Health Care Quality Improvement Act of 1986 does not require a federal privilege for hospital peer review proceedings in a Title VII action.