HLD, v. 32, n. 1 (January 2004)
U.S. Court In Louisiana Finds No Federal Medical Peer Review Privilege
The U.S. District Court for the Eastern District of Louisiana October
29 refused to recognize a federal privilege for medical peer review documents
sought by a physician claiming that a hospital violated her due process rights
when it reduced her medical staff privileges. The court affirmed a magistrate
judge's order denying the defendant hospital's motion to quash the physician's
subpoena for hospital peer review files of all cardiologists with staff privileges.
The court found no indication in federal common law that such a privilege existed.
The court also concluded that the Health Care Quality Immunity Act (HCQIA) did
not establish a federal statutory medical peer review privilege.
Plaintiff Dr. Sophia Rdzanek sued Hospital Service District # 3,
Parish of Lafourche d/b/a Thibodaux Regional Medical Center (TRMC) and its board
of commissioners, medical executive committee, and chief executive officer (collectively
defendants) after her medical staff privileges at the hospital were reduced
to courtesy privileges. Plaintiff alleged several claims against defendants,
including claims under 42 U.S.C. � 1983 and under Louisiana unfair trade practices
and consumer protection laws.
The court ordered a hearing to determine whether plaintiff's �
1983 claim warranted a preliminary injunction. As part of discovery, plaintiff
served a subpoena duces tecum for production of hospital peer review files of
all other cardiologists with staff privileges at TRMC. Defendants moved to quash
plaintiff's subpoena, arguing the requested peer review files were privileged.
A magistrate judge denied the motion. Defendants sought the court's review of
the magistrate's order.
The U.S. District Court for the Eastern District of Louisiana affirmed
the magistrate judge's order. The court first determined that federal, not state,
privilege law applied. This was a critical issue because, under state law, the
peer review documents would have been privileged. The court looked to Fed.
R. Evid. 501, which provides that federal law governing privileges controls
in federal question cases but state law privileges apply when state law provides
the rule of decision for a plaintiff's claims. The instant case involved federal
claims and pendant state law claims, a scenario not specifically addressed by
Rule 501. After reviewing other decisions on the issue, the court concluded
that, because the information related to plaintiff's federal law claim under
� 1983, federal privilege law governed all claims of privilege raised in the
Reviewing applicable federal common law addressing the issue, the
court concluded no federal medical peer review privilege existed. The court
noted that the U.S. Supreme Court had declined to establish a federal law privilege
for academic peer review materials and that other federal courts specifically
have found no such privilege in the medical peer review context either. The
court also rejected defendants' argument that HCQIA, which provides qualified
immunity for persons providing information to a professional review body regarding
physician competence or conduct, created a federal statutory medical peer review
privilege. "Clearly, the HCQIA nowhere provides for evidentiary exclusion of
peer review materials," the court wrote.
The court also declined to recognize a new peer review privilege
in connection with the instant set of facts. Here, the magistrate judge issued
a protective order to keep the information at issue confidential. "The Court
finds that the importance of protecting peer review information to any greater
extent than that provided by the protective order is outweighed by the truth
seeking function of the federal courts," the opinion said.
Finally, the court rejected defendants' contention that the peer
review information of all the other cardiologists at the hospital was not relevant
to plaintiff's � 1983 claim. These records, the court said, could be relevant
in determining whether the due process afforded to plaintiff was appropriate.
The court cautioned, however, that because plaintiff did not assert an equal
protection claim, the information was potentially relevant in so far as it related
to the due process afforded others, rather than the outcome of those proceedings.
Rdzanek v. Hospital Serv. Dist., No. Civ.A. 03-2485 (E.D.
La. Oct. 29, 2003).