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U.S. Court In Louisiana Finds No Federal Medical Peer Review Privilege


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 litigation.

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).

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