Wei v. Bodner
In Wei v. Bodner, 127 F.R.D. 91 (D.N.J. 1989), a federal district court rejected a claim of privilege under New Jersey law and ordered disclosure pursuant to federal rules of procedure:
- The defendants contend that the documents sought are protected by a peer review privilege. This privilege is a matter of both New Jersey and federal statutory law. Both the state and the federal laws protect certain hospital peer review committees and their members from liability, provided that certain requirements have been met. The statutes also provide a limited privilege for the committee's activities.
- The New Jersey privilege, N.J.S.A. 2A:84A-22.8 (Supp. 1988), states that, with some exceptions, information and data obtained by utilization review committees cannot be disclosed. The privilege this statute creates is very limited. It applies only to utilization review committees, a term defined in the statute. See Young v. King, 136 N.J. Super. 127, 344 A.2d 792 (N.J. Super.L. 1975). This privilege was created to encourage participation on these committees and to further the implementation of Medicare. Id.
- Many other states have qualified peer review privileges as well. In Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981), the court stated that the Illinois peer review privilege was enacted to encourage hospitals to quickly take corrective action in response to inadequate medical care. By creating a limited privilege, the act enables people to speak more freely before the committee. Id. The Robinson court notes that the Pennsylvania statutory peer review privilege also encourages open discussion in an effort to improve medical care.
- Despite the advantages gained by statutory peer review privileges, courts have consistently held these policies to be outweighed by the policies behind federal antitrust laws. See, e.g., Memorial Hospital, Quinn v. Kent General Hospital, Inc., 617 F. Supp. 1226 (D.Del. 1985), Robinson, Jiricko and Dorsten v. Lapeer County General Hospital, 88 F.R.D. 583 (E.D. Mich. 1980). Since the discovery sought goes directly to the substance of the antitrust claims and since the peer review committees can be used for anticompetitive purposes, the need for confidentiality is outweighed by the need for disclosure. See Robinson.
Id. at 98-99.
The court added that "[t]he same result is generally, although less consistently, reached in other federal question cases. See, e.g., Ott v. St. Luke Hospital of Campbell County, Inc., 522 F. Supp. 706 (E.D.Ky. 1981) and Schafer v. Parkview Memorial Hospital, Inc., 593 F. Supp. 61 (N.D. Ind. 1984). But see, Doe v. St. Joseph's Hospital of Fort Wayne, 113 F.R.D. 677 (N.D.Ind. 1987)." Id. at 99 n.5.