|||UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
|||August 1, 2001
|||ASHUTOSH RON VIRMANI, MD, PLAINTIFF-APPELLEE,
NOVANT HEALTH INCORPORATED, FORMERLY KNOWN AS PRESBYTERIAN HEALTH SERVICES CORPORATION, DEFENDANT-APPELLANT. NORTH CAROLINA MEDICAL SOCIETY; NORTH CAROLINA HOSPITAL ASSOCIATION; AMERICAN MEDICAL ASSOCIATION; AMERICAN HOSPITAL ASSOCIATION; AMERICAN ASSOCIATIONOF PHYSICIANSOF INDIAN ORIGIN; AMERICAN COLLEGEOF INTERNATIONAL PHYSICIANS; NATIONAL MEDICAL ASSOCIATION; CHARLOTTE MEDICAL SOCIETY; NORTH CAROLINA ASSOCIATIONOF PHYSICIANSOF INDIAN ORIGIN; OLD NORTH STATE MEDICAL SOCIETY, AMICI CURIAE.
|||Appeal from the United States District Court for the Western District
of North Carolina, at Charlotte. H. Brent McKnight, Magistrate Judge. (CA-99-15-3-V)
|||Counsel Argued: Lawrence Carlton Moore, III, Robinson, Bradshaw &
Hinson, P.A., Charlotte, North Carolina, for Appellant. James Clayton Culotta,
Law Office OF Kenneth Joel Haber, P.C., Rockville, Maryland, for Appellee.
ON Brief: Everett J. Bowman, Louis A. Bledsoe, III, Robinson, Bradshaw &
Hinson, P.A., Charlotte, North Carolina, for Appellant. Kenneth J. Haber,
Charles E. Hamilton, III, Law Office OF Kenneth Joel Haber, P.C., Rockville,
Maryland, for Appellee. Julian D. Bobbitt, Jr., Sean A. Timmons, Smith,
Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., Raleigh, North
Carolina, for Amici Curiae Medical Society, et al. Normand F. Pizza, Carin
A. Kramer, Milling, Benson, Woodward, L.L.P., New Orleans, Louisiana, for
Amici Curiae Association of Physicians, et al.
|||Before Widener and Luttig, Circuit Judges, and Rebecca Beach Smith, United
States District Judge for the Eastern District of Virginia, sitting by designation.
|||The opinion of the court was delivered by: Smith, District Judge
|||Argued: April 5, 2001
|||Affirmed by published decision. Judge Smith wrote the opinion, in which
Judge Widener and Judge Luttig joined.
|||Novant Health, Incorporated ("Novant") appeals an order of the
district court denying its motion for protective order and granting in part
Dr. Ashutosh Ron Virmani's motion to compel records related to medical peer
reviews. Novant argues that the documents Virmani seeks to discover are
privileged. Because we decline to recognize a privilege for medical peer
review materials, we affirm the order of the district court.
|||Dr. Virmani is an obstetrician-gynecologist who was granted medical staff
membership and clinical privileges at Presbyterian Hospital and Presbyterian
Hospital Matthews (collectively,"Presbyterian").*fn1
During a laparoscopic procedure in 1994 at Presbyterian Hospital, Virmani
inadvertently punctured the iliac artery of a patient, creating a life-threatening
emergency. Virmani states that this is a known possible complication of
the procedure. Following a lengthy series of proceedings, Presbyterian suspended
Virmani's staff membership and clinical privileges.
|||The first review (the "First Peer Review"), conducted by Presbyterian's
OB/GYN Committee, lasted five months, from March through August of 1995.
The Committee reviewed all cases in which Virmani had been the primary care
physician since August of 1993 and found 24 of the 102 cases to be problematic.
Based on the Committee's report, Novant suspended Virmani's privileges,
pending a review by Presbyterian's Medical Board. At Virmani's request,
the Hearing Committee of the Medical Board, which is composed of three physicians,
conducted a full hearing on November 21, 1995. Following that hearing, the
Medical Board voted to terminate Virmani's medical staff privileges. Presbyterian's
Board of Trustee's upheld that decision on January 19, 1996.
|||On January 22, 1996, Virmani filed an action against Novant in North Carolina
state court, alleging that the manner in which Presbyterian had suspended
Virmani's privileges breached its bylaws. The trial court ordered Novant
to give Virmani a new peer review proceeding, to be conducted by a peer
review body composed of physicians from outside Presbyterian. In August
of 1997, the North Carolina Court of Appeals affirmed the trial court's
order to the extent it required a second peer review, but reversed as to
the requirement that the second peer review body consist of an external
committee. See Virmani v. Presbyterian Health Servs. Corp., 488 S.E.2d 284,
289 (N.C. Ct. App. 1997). Presbyterian then began a second internal peer
review (the "Second Peer Review"), using a committee composed
of members different from those who had conducted the First Peer Review.
As a result of the Second Peer Review, the Medical Board and the Board of
Trustees again decided to terminate Virmani's staff privileges.
|||Virmani filed the instant action in federal court on January 15, 1999,
alleging that the termination of his privileges constituted discrimination
against him on the basis of his race and national origin, in violation of
42 U.S.C.A. §§ 1981, 1985 (West 1994). He claims that the hospital performed
its medical peer review functions in a discriminatory manner, treating non-Indian
physicians differently and disciplining them less harshly. Virmani also
asserted state law claims for intentional infliction of emotional distress
and negligent infliction of emotional distress.
|||During discovery, Virmani sought to obtain, inter alia, all peer review
records related to all reviews of physicians for any reason, during the
twenty years preceding his request. Novant moved for a protective order,
arguing that the peer review materials were privileged under North Carolina
law, see N.C. Gen. Stat. § 131E-95(b) (1999), and pursuant to Federal Rule
of Evidence 501. Virmani filed a motion to compel production of the materials.
|||The district court*fn2 refused to recognize
a privilege for medical peer review materials and, in its order filed June
27, 2000, denied Novant's motion for protective order. The court agreed
with Novant, however, that the scope of Virmani's discovery requests was
overly broad. Accordingly, in its June 27, 2000, order, the court granted
in part and denied in part Virmani's motion to compel. Specifically, the
court ordered production of "documents pertaining to competency reviews
of OB-GYN's from 1982 through 1997." J.A. 206.
|||On August 15, 2000, the district court denied Novant's motion for reconsideration.
The court certified its June 27, 2000, order for interlocutory appeal, and
we granted Novant's petition for leave to appeal.
|||Novant argues on appeal that the district court erred in refusing to recognize
a privilege for documents related to medical peer review proceedings. Federal
Rule of Evidence 501, which governs privileges in federal courts, provides
|||Except as otherwise required by the Constitution of the United States
or provided by Act of Congress or in rules prescribed by the Supreme Court
pursuant to statutory authority, the privilege of a witness, person, government,
State, or political subdivision thereof shall be governed by the principles
of the common law as they may be interpreted by the courts of the United
States in the light of reason and experience. Fed. R. Evid. 501.*fn3
|||Whether to recognize a privilege under Federal Rule of Evidence 501 is
a mixed question of law and fact, which we review de novo. See Carman v.
McDonnell Douglas Corp., 114 F.3d 790, 793 n.2 (8th Cir. 1997). Evidentiary
privileges "are not lightly created," United States v. Nixon,
418 U.S. 683, 710 (1974), because "privileges contravene the fundamental
principle that the public . . . has a right to every man's evidence,"
University of Pa. v. EEOC, 493 U.S. 182, 189 (1990) (alteration in original)
(internal quotation marks omitted). When considering whether to recognize
a privilege, a court must begin with "the primary assumption that there
is a general duty to give what testimony one is capable of giving, and that
any exemptions which may exist are distinctly exceptional, being so many
derogations from a positive general rule." Jaffee v. Redmond, 518 U.S.
1, 9 (1996) (internal quotation marks omitted). Thus, in our determination
of whether to recognize a new privilege, we must heed the Supreme Court's
admonition that we should not "create and apply an evidentiary privilege
unless it `promotes sufficiently important interests to outweigh the need
for probative evidence.'" University of Pa., 493 U.S. at 189 (quoting
Trammel v. United States, 445 U.S. 40, 51 (1980)); see also Pearson v. Miller,
211 F.3d 57, 67 (3d Cir. 2000) ("[F]ederal courts are to assess the
appropriateness of new privileges as they arise in particular cases, but
they are to conduct that assessment with a recognition that only the most
compelling candidates will overcome the law's weighty dependence on the
availability of relevant evidence.").
|||Novant argues that confidentiality is essential to the effectiveness of
medical peer review committees. Some courts have found that if a privilege
is not accorded to the documents considered and produced by these committees,
physicians would be reluctant to serve on the committees or would be less
candid in their evaluations if they did serve; as a result, the quality
of health care would suffer. See, e.g., HCA Health Servs. of Va., Inc. v.
Levin, 530 S.E.2d 417, 420 (Va. 2000). The issue before us is whether the
interest in promoting candor in medical peer review proceedings outweighs
the need for probative evidence in a discrimination case.*fn4
This is an issue of first impression in this Circuit.*fn5
Novant advances three arguments in support of recognizing such a privilege:
(1) the reasons underlying the Supreme Court's decision in Jaffee v. Redmond,
518 U.S. 1 (1996), to recognize a "psychotherapist privilege"
apply with equal or greater force to the privilege at issue here; (2) Congress
favors a medical peer review privilege; and (3) precedent from other circuits
favors granting the privilege. We consider each argument in turn.
|||Novant identifies the following reasons underlying the Supreme Court's
decision in Jaffee to recognize a privilege for statements made by a patient
to her therapist during counseling sessions: the privilege serves a compelling
public end; rejection of the privilege would result in only a modest evidentiary
benefit; and all fifty states and the District of Columbia have recognized
the privilege. Novant argues that each of these reasons applies with equal
or greater force in favor of recognizing a privilege for medical peer review
materials in this case, where a physician has alleged that he was the victim
of discrimination in the peer review process. We disagree.
|||The Court in Jaffee determined that the psychotherapist privilege would
serve the private interest of protecting confidential communications between
psychotherapist and patient and the public interest of "facilitating
the provision of appropriate treatment for individuals suffering the effects
of a mental or emotional problem." Jaffee, 518 U.S. at 11. The Court
concluded that these "significant" interests outweighed the "modest"
evidentiary benefit that would be realized by denying the privilege. Id.
In particular, the Court observed that "[w]ithout a privilege, much
of the desirable evidence to which litigants such as petitioner seek access
. . . is unlikely to come into being. This unspoken `evidence' will therefore
serve no greater truth-seeking function than if it had been spoken and privileged."
Id. at 12.
|||Significantly, the issue of privilege arose in Jaffee in an entirely different
context than that of this case, in which Virmani's claim of discrimination
arises from the peer review process itself. Therefore, Novant's reliance
on Jaffee is misplaced. In Jaffee, a police officer who had fatally shot
a person was being sued by the decedent's estate for use of excessive force.
The plaintiff sought notes from counseling sessions in which the police
officer participated after the traumatic incident. See id. at 5. The psychotherapy
sessions did not form the basis of the underlying claim of excessive force.
In contrast, Virmani has alleged that the peer review proceedings themselves
were conducted in a discriminatory manner.
|||The best evidence regarding whether Virmani was properly suspended for
his medical actions, rather than improperly suspended due to his race and
national origin, is to be found in the process by which the decision to
suspend him was reached.
|||Our decision here is more properly guided by University of Pennsylvania
v. EEOC, 493 U.S. 182 (1990). In that case, involving a professor who claimed
she was denied tenure because of racial and sexual discrimination, the Supreme
Court was asked to "fashion a new privilege" that the University
claimed was"necessary to protect the integrity of the peer review process,
which in turn is central to the proper functioning of many colleges and
universities." 493 U.S. at 189. The Court declined to create such a
privilege because it determined that the costs associated with discrimination
outweighed the costs that would ensue from the disclosure of peer review
materials. See id. at 193.*fn6 The Court
found the peer review materials to be especially relevant because the discrimination
charge arose from the peer review proceedings themselves:
|||"[C]onfidential material pertaining to other candidates for tenure
in a similar time frame may demonstrate that persons with lesser qualifications
were granted tenure or that some pattern of discrimination appears. . .
. [T]he peer review material itself must be investigated to determine whether
the evaluations are based in discrimination and whether they are reflected
in the tenure decision." Id. (quoting EEOC v. Franklin & Marshall
Coll., 775 F.2d 110, 116 (3d Cir. 1985)) (second & third alterations
in original); see also Marshall v. Spectrum Med. Group, 198 F.R.D. 1, 5
(D. Me. 2000) (declining to recognize privilege in action brought under
Americans with Disabilities Act, in part because the suit alleged abuse
of the peer review process); Holland v. Muscatine Gen. Hosp. , 971 F. Supp.
385, 390 (S.D. Iowa 1997) (declining to recognize privilege in action brought
under Title VII of the Civil Rights Act of 1964 and stating that "[t]he
adequacy of the peer review investigation itself is in issue").
|||We agree with Novant that the privilege it seeks would serve important
interests. However, as is the case in the academic context, the evidentiary
benefit that will be realized by refusing to grant a privilege for medical
peer review materials in a discrimination case is potentially great. The
evidence Virmani seeks is crucial to his attempt to establish that he has
been the subject of disparate treatment on the basis of race and ethnicity.
|||To prove his allegations of disparate treatment, Virmani must compare
the proceedings in his case against those involving similarly situated physicians.
The interest in facilitating the eradication of discrimination by providing
perhaps the only evidence that can establish its occurrence outweighs the
interest in promoting candor in the medical peer review process. See, e.g.,
University of Pa., 493 U.S. at 193 ("[F]erreting out . . . invidious
discrimination is a great, if not compelling, governmental interest.").
|||Novant further asserts that, as in Jaffee, evidence of the type that discrimination
plaintiffs such as Virmani seek will not come into being if there is no
medical peer review privilege, because physicians will be reluctant to speak
openly and, in particular, will refrain from making remarks that would constitute
evidence of discrimination. The evidence that Virmani seeks, however, is
not evidence in the form of a "smoking gun," but rather, evidence
of disparate treatment on the basis of impermissible factors. Such evidence
will not come into being in the peer review process only if such disparate
treatment ceases to occur. Thus, unlike the situation in Jaffee, where the
Court concluded that inhibiting admissions against interest is inconsistent
with the goals of psychotherapy, and thereby harmful to societal interests,
here, inhibiting the existence of the evidence at issue is not inconsistent
with the goals of medical peer review and is beneficial to societal interests.*fn7
|||Novant calls to our attention the fact that all fifty states and the District
of Columbia have recognized some form of medical peer review privilege.
The Supreme Court stated in Jaffee that "the policy decisions of the
States bear on the question whether federal courts should recognize a new
privilege," and "the existence of a consensus among the States
indicates that `reason and experience' support recognition of the privilege."
Jaffee, 518 U.S. at 12-13. In this case, however, the decision to accord
privileged status to peer review materials, in at least some states, appears
to have been based on the policy decision that the interest in promoting
candor among medical personnel outweighs the interest in providing access
to evidence in medical malpractice actions. See, e.g., Eubanks v. Ferrier,
267 S.E.2d 230, 232 (Ga. 1980) (construing the Georgia statute making medical
peer review materials privileged and citing cases from other states); see
also Levin, 530 S.E.2d at 420 (observing that the Virginia statute making
peer review information privileged is codified in the medical malpractice
chapter of the title on civil procedure). The Georgia Supreme Court, for
example, stated, "Courts considering the question have held that the
enactment of such statutes represents a proper legislative choice between
the competing public concerns of fostering medical staff candor, on the
one hand, and impairing medical malpractice plaintiffs' access to evidence,
on the other hand." Eubanks, 267 S.E.2d at 232. Other reasons that
have been advanced in support of the privilege include protecting committee
members from defamation suits and a loss of referrals. See, e.g. , Baltimore
Sun Co. v. University of Md. Med. Sys. Corp., 584 A.2d 683, 686-87 (Md.
1991).*fn8 In contrast to a discrimination
case, in which the plaintiff's claim arises out of the peer review proceedings,
a plaintiff's claim in a medical malpractice case arises from actions that
occurred independently of the review proceedings. See Memorial Hosp. v.
Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981) (per curiam) ("To recognize
hospital review or disciplinary proceedings as privileged in the context
of a malpractice action will generally have little impact upon the plaintiff's
ability to prove a meritorious claim. For the crucial issue in that type
of case is not what occurred at the review proceeding, but whether the defendant
was in fact negligent in his care and treatment of the plaintiff.").
|||There is no evidence that state legislatures considered the potential
impact on discrimination cases of a privilege for medical peer review proceedings.
Thus, the states' policy decisions, reflecting different concerns than those
implicated here, do not inform the judgment of this court in this case.
Weighing further against recognizing a privilege here is that, in contrast
to a medical malpractice or defamation action, if a plaintiff succeeds in
a discrimination case, he advances important public interests in addition
to his personal interests. Cf. id. (refusing to recognize a privilege for
medical disciplinary proceedings in an antitrust case and observing that
if the plaintiff was successful in proving his claim, he would "vindicate
not only his own right to practice medicine . . ., but also the strong public
interest in open and fair competition which is embodied in the Sherman Act
under which the case arises").
|||We should not recognize a privilege "where it appears that Congress
has considered the relevant competing concerns but has not provided the
privilege itself." University of Pa., 493 U.S. at 189. The district
court below found that Congress had considered and rejected a privilege
for medical peer review materials when it enacted the Health Care Quality
Improvement Act of 1986 ("HCQIA"), 42 U.S.C.A. §§ 11101-11152
|||Novant argues that this finding is in error, and that, to the contrary,
Congress favors a medical review privilege. Although we cannot conclude
that Congress actually considered and rejected a privilege for medical review
materials when enacting the HCQIA, it is clear that Congress considered
the relevant competing interests--providing incentive and protection to
physicians who would serve on review committees versus allowing putative
victims of discrimination to pursue their claims--and decided to give greater
weight to the latter.
|||Congress's findings with respect to the HCQIA reflect its concern that
medical malpractice and the need to improve the quality of medical care
were national problems. See 42 U.S.C.A. § 11101(1). Congress determined
that effective peer review would provide a remedy to these problems. See
id. § 11101(3). However, "[t]he threat of private money damage liability
under Federal laws, including treble damage liability under Federal antitrust
law, unreasonably discourages physicians from participating in effective
professional peer review." Id. § 11101(4). Thus, Congress concluded
that "[t]here is an overriding national need to provide incentive and
protection for physicians engaging in effective professional peer review."
Id. § 11101(5). To provide this incentive and protection, Congress provided
immunity from liability in damages to participants in the activities of
professional review bodies meeting specified standards. See id. § 11111(a).
However, Congress created an express exception to the immunity provision
in the case of civil rights actions. See id. § 11111(a)(1) (providing that
the exemption from liability in damages "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.").
Thus, insofar as Congress has considered the competing interests, it has
not elevated the interest in encouraging peer review over the interest in
combating discrimination.*fn10 Novant
contends that Congress favors a medical peer review privilege, as evidenced
by the enactment of a privilege for the Department of Defense and the Department
of Veterans Affairs. See 10 U.S.C.A. § 1102(a) (West 1998) (providing that
"[m]edical quality assurance records created by or for the Department
of Defense as part of a medical quality assurance program are confidential
and privileged"); 38 U.S.C.A. § 5705(a) (West 1991) (providing that"[r]ecords
and documents created by the Department [of Veterans Affairs] as part of
a medical quality-assurance program . . . are confidential and privileged").
However, these provisions also demonstrate that Congress will create a medical
peer review privilege when it is so inclined.
|||Finally, Novant argues that recognition of the privilege is supported
by cases from the Fifth and Seventh Circuits. In fact, the Seventh Circuit
expressly declined to recognize a medical peer review privilege in Memorial
Hospital v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981) (per curiam) (rejecting
the privilege in a civil antitrust action and stating that "[t]he public
interest in private enforcement of federal antitrust law in this context
is simply too strong to permit the exclusion of relevant and possibly crucial
evidence by application of the Hospital's privilege").
|||Novant argues that the holding in Shadur was subsequently undermined by
the Seventh Circuit in Marrese v. American Academy of Orthopaedic Surgeons,
726 F.2d 1150 (7th Cir. 1984) (en banc), rev'd on other grounds, 470 U.S.
373 (1985). In Marrese, however, the Seventh Circuit did not address the
issue of whether medical peer review documents should be privileged. Indeed,
rebuffing a First Amendment argument raised by the party seeking to withhold
documents, the court stated, "If [the argument is] meant to establish
a complete immunity from pretrial discovery of these materials[,] the argument
is untenable in light of [Shadur], which rejected a claim of privilege for
a hospital's records of disciplinary proceedings against staff physicians."
726 F.2d at 1159.*fn11 The Fifth Circuit
case cited by Novant does not support its position either. At issue in United
States v. Harris Methodist Fort Worth, 970 F.2d 94 (5th Cir. 1992), was
the reasonableness of an administrative search that the Department of Health
and Human Services proposed to conduct of a hospital's records to determine
if the hospital was in compliance with civil rights laws. See 970 F.2d at
96, 100-02. This case is, therefore, inapposite, since it involved the balancing
of interests under the Fourth Amendment, not Federal Rule of Evidence 501.*fn12
|||In summary, only the Seventh Circuit has squarely addressed the issue
of whether peer review documents should be privileged in federal courts,
and that court has declined to recognize the privilege.*fn13
We, too, decline to recognize such a privilege here.
|||We hold that the interest in obtaining probative evidence in an action
for discrimination outweighs the interest that would be furthered by recognition
of a privilege for medical peer review materials. Therefore, we decline
to recognize such a privilege. Accordingly, the order of the district court
|||*fn1 The hospitals are non-parties that
are subsidiaries of Novant, formerly known as Presbyterian Health Services
|||*fn2 The case was referred to Magistrate
Judge McKnight, pursuant to 28 U.S.C.A. § 636(c)(2) (West 1993).
|||*fn3 The rule continues: "However,
in civil actions and proceedings, with respect to an element of a claim
or defense as to which State law supplies the rule of decision, the privilege
of a witness, person, government, State, or political subdivision thereof
shall be determined in accordance with State law." Fed. R. Evid. 501.
If North Carolina law supplied the rule of decision, the materials would
be privileged. See N.C. Gen. Stat. § 131E95(b) (providing that "[t]he
proceedings of a medical review committee, the records and materials it
produces and the materials it considers . . . shall not be subject to discovery
or introduction into evidence in any civil action against a hospital").
This case involves a federal question together with pendent state law claims,
however, and the Supreme Court has not addressed the question of whether
federal common law controls in such a situation. See Jaffee v. Redmond,
518 U.S. 1, 16 n.15 (1996). We agree with our sister circuits that in a
case involving both federal and state law claims, the federal law of privilege
applies. See Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000); Hancock
v. Dodson , 958 F.2d 1367, 1373 (6th Cir. 1992); von Bulow v. von Bulow,
811 F.2d 136, 141 (2d Cir. 1987); Memorial Hosp. v. Shadur, 664 F.2d 1058,
1061 & n.3 (7th Cir. 1981) (per curiam).
|||*fn4 We emphasize that Novant seeks
to prevent Virmani from discovering peer review documents for use in this
case of alleged discrimination; patient confidentiality is not at issue
here, nor is public disclosure of other confidential medical records. There
is an important distinction between privilege and protection of documents,
the former operating to shield the documents from production in the first
instance, with the latter operating to preserve confidentiality when produced.
An appropriate protective order can alleviate problems and concerns regarding
both confidentiality and scope of the discovery material produced in a particular
case. Indeed, in the district court's order of June 27, 2000, refusing to
recognize a privilege for peer review materials, the court limited the scope
of the discovery requests in terms of the time period covered and the medical
specialty involved. Further, on September 12, 2000, a consent protective
order was entered by the court, which order provided for the protection
of confidential documents, and, in particular, restricted the use of the
confidential documents to the instant action. A court likewise can protect
the identities of third parties, i.e., the patients and the other physicians
who were the subjects of prior peer reviews, as well as exclude or redact
extraneous confidential medical information, through an appropriate order.
See Marrese v. American Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 1160
(7th Cir. 1984) (en banc) (describing means by which immaterial confidential
information could be protected, including in camera review of documents
and redaction of the names of reviewers pending a showing of relevance),
rev'd on other grounds, 470 U.S. 373 (1985); cf. Memorial Hosp. v. Shadur
, 664 F.2d 1058, 1063 n.6 (7th Cir. 1981) (per curiam) (suggesting that
a protective order providing for in camera review of requested material
to determine its relevance would mitigate the costs of disclosure of non-privileged
|||*fn5 Relevant case law from the Fifth
and Seventh Circuits is discussed infra Part II.C.
|||*fn6 Crucial to the Court's holding
was its determination that Congress had balanced the relevant interests
and had declined to create a privilege. See University of Pa., 493 U.S.
at 189-93. We discuss Congress's treatment of a medical peer review privilege
infra Part II.B.
|||*fn7 Furthermore, the motivations of
those seeking the privilege here differ from those in Jaffee. A patient
in need of a psychotherapist would have a personal motivation to seek mental
health treatment, which might be diminished in the absence of a privilege.
A doctor called upon to serve on a medical peer review committee may have
a sense of obligation to the public at large, in addition to a personal
desire to maintain quality health care, which may overcome any reluctance
to serve and be forthcoming on a peer review committee, even in the absence
of a privilege. See LeMasters v. Christ Hosp., 791 F. Supp. 188, 191 (S.D.
Ohio 1991) ("[M]ost physicians feel an ethical duty to the profession
and to the public to keep the standard of health care high.").
|||*fn8 One commentator has characterized
the need for confidentiality of medical peer review materials as follows:
A physician's qualifications, competence, and ethics all are called into
question when a medical staff committee is requested to review his application
for staff privileges, to determine the extent of his clinical privileges,
or to assess the quality of his work. The nature of these activities suggests
that committee participants may lose professional friends, as well as referrals,
from physicians who receive unfavorable reviews. In addition, the committee
members, and the hospital as well, may be exposed to costly litigation alleging
defamation, the most common claim arising from committee activities. Charles
David Creech, Comment, The Medical Review Committee Privilege: A Jurisdictional
Survey, 67 N.C. L. Rev. 179, 179 n.4 (1988) (internal quotation marks omitted).
|||*fn9 The court followed the reasoning
of other district courts that had considered the issue and determined that
Congress decided not to establish a privilege for peer review documents.
See, e.g. , Johnson v. Nyack Hosp., 169 F.R.D. 550, 560 (S.D.N.Y. 1996).
|||*fn10 Novant argues that, despite
the fact that Congress failed to enact a privilege, Congress intended to
protect medical peer review materials. Novant observes that Representative
Waxman, the main sponsor of the House bill, stated that the bill was not
intended to override state shield laws "that restrict the type of evidence
that may be introduced in lawsuits challenging a disciplinary action in
the context of peer review." 132 Cong. Rec. 33,117 (1986). However,
Representative Waxman also indicated that the bill was not intended to shield
acts of discrimination. See id. at 30,766 ("Actions that violate civil
rights laws . . . will not be protected under this bill.").
|||*fn11 While the Seventh Circuit did,
as Novant claims, consider the underlying policy of protecting the files
at issue in its review of the district court's discovery order and subsequent
contempt order, the Seventh Circuit did not find that the interest in the
confidentiality of the files was paramount. Rather, the court concluded
that "there were various devices that the district judge could have
used to reconcile the parties' competing needs." 726 F.2d at 1160.
The court emphasized, in fact, that its holding was limited: "We do
not hold that all files of all voluntary associations are sacrosanct; we
do not even hold that the membership files of an association of medical
professionals are sacrosanct. They are discoverable in appropriate circumstances,
subject to appropriate safeguards." Id. at 1161.
|||*fn12 Although the Fifth Circuit addressed
the hospital's argument that the documents sought were privileged, this
portion of the opinion is dicta. See 970 F.2d at 103 ("[B]ecause we
affirm the district court's determination that the proposed search exceeded
bounds of reasonableness, we need not define the scope of any applicable
|||*fn13 The district courts that have
addressed the issue in discrimination cases have all rejected a medical
peer review privilege. See, e.g., Holland, 971 F. Supp. at 389; Johnson
v. Nyack Hosp., 169 F.R.D. 550, 561 (S.D.N.Y. 1996); Robertson v. Neuromedical
Ctr. , 169 F.R.D. 80, 83-84 (M.D. La. 1996); LeMasters v. Christ Hosp.,
791 F. Supp. 188, 191 (S.D. Ohio 1991). None of the cases cited by Novant
that recognize the privilege involved discrimination claims.
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