Law & Medicine

A Matter of Privilege

The case of Russell Adkins, M.D. v. Arthur Christie et al. may not sound very exciting on its face, but it could be a significant one for practicing physicians because of its potential effect on peer review.

Dr. Adkins, an African American, brought suit in federal court against the hospital where he had been practicing, as well as against its administrator and its staff physicians (all located in Georgia) for allegedly discriminating against him by summarily suspending his privileges. Dr. Adkins also alleges his privileges were not renewed because of his race, and that he was not accorded due process.

During discovery, Dr. Adkins sought documents from the hospital's peer review committee relating to peer review of all physicians at the hospital during the 7 years that he was a member of the medical staff. The defendants objected, arguing that the information that Dr. Adkins sought was privileged under Georgia's peer review statute which states: “[T]he proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee.”

Although the federal trial judge found the privilege applicable to federal civil rights actions, he disagreed with what the defendants argued, and ordered them to produce descriptions of events giving rise to peer review without producing the documents themselves.

When the defendants asked that the case be dismissed, the court inspected the documents at issue, but went ahead and dismissed the case. Dr. Adkins appealed to the 11th Circuit Court of Appeals in Atlanta, asserting the trial court improperly recognized the peer review privilege.

The appeals court decided that the privilege protecting peer review documents would not be recognized in Dr. Adkins' civil rights lawsuit, and reversed the decision of the federal court below. After a legal analysis, the court ruled on Oct. 22 that in federal law, privileges such as the one protecting peer review information from disclosure are not favored absent extraordinary circumstances, since privileges can well cloud the truth-seeking process.

In a discrimination case such as this one, protecting peer review information does not trump the right to seek the truth for an asserted violation of a person's—in this case, a physician's—civil rights. At the same time, the U.S. Supreme Court has recognized the psychotherapist-patient privilege in one of its own decisions.

The conundrum raised by the 11th Circuit's opinion is not in adding to the “mushiness” of federal decisions addressing when and under what circumstances a peer review privilege should be recognized, but in its failure to recognize how the peer review statute will be applied and interpreted by a state judge considering the very same privilege in light of the same or a quite similar case—for example, civil rights or antitrust cases—that was filed understate law.

Regulating health care is state based. Congress has never enacted a federal peer review statute and has never announced its intention to do so.

Moreover, peer review statutes were created to further health care within a particular state by enabling physicians in that state to freely and candidly discuss and review medical care within their institutions and hospitals—thus policing themselves. Consequently, since health care is state based and since regulation of that care is state based, then the interpretation and application of the privilege against disclosure of peer review materials by a federal court should be gleaned from how a state court would use the privilege in the same or similar circumstances.

If the particular state peer review statute does not allow for any disclosure, then a federal court should do the same analysis; if a state court “balances” various factors, for example, to first look at the peer review information before allowing it to be disclosed or limiting the time period when the documents were created, then, likewise, a federal court should arrive at the same result. In the end, health care does not change simply because an aggrieved party, like Dr. Adkins, sues in a federal court, and not in a state court.

After the appeals court ruled against them, the defendants in the Adkins case asked the U.S. Supreme Court to take on the case; on January 7, the court said it would not do so. Had it accepted the Adkins case, the Supreme Court would have had a real opportunity to instruct its lower federal courts that when confronting the protections afforded by a state peer review statute, they should look to how the state statute is interpreted by the state courts in which the federal court sits. With this approach, there would be uniformity in application by all courts throughout both the federal and state systems of jurisprudence.

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