All 50 states and the District of Columbia have statutes protecting physician peer review performance assessments from discovery in order to encourage vigorous institutional oversight of physician practice. In Georgia, for example, the statute explicitly states that the records of a medical review committee “shall not be subject to discovery” in “any civil action” against a health care provider. The state courts have found that this language places “an absolute embargo upon the discovery of all proceedings, records, findings and recommendations of peer review groups and medical review committees in civil litigation.”

As a result of these statutory enactments and the cases interpreting them, many participants in the peer review process understand that the peer review privilege provides absolute protection, ensuring that any documentation created during a peer assessment cannot be disclosed in a subsequent court case. However, a recent federal court decision has found that the peer review privilege does not prohibit the discovery of peer review material in a federal court action for employment discrimination.

In a June 12, 2007 decision, the Eleventh Circuit Court of Appeals held that the peer review privilege does not apply in an employment discrimination suit. See Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007). The case was brought by an African- American surgeon who claimed that Houston Medical Center discriminated against him by subjecting him to a disproportionately high level of peer review and unfairly subjecting him to harsh penalties, ultimately resulting in termination of his staff privileges. To establish differential treatment due to his race, Dr. Adkins requested documents relating to the peer review of all physicians at the hospital during the seven years he was a member of the staff.

The Eleventh Circuit found that Dr. Adkins was entitled to receive all of the documents he had requested, notwithstanding the statutory enactment by the Georgia legislature and the Georgia court decisions interpreting that enactment. In support of its decision, the Eleventh Circuit cited two decisions from other courts of appeals. In the more recent 2001 decision, the Fourth Circuit Court of Appeals allowed discovery of peer review records in an employment discrimination case brought by an Indian physician whose staff privileges were terminated after a problematic surgery. See Viramani v. Novant Health, Inc., 259 F.3d 284 (4th Cir. 2001). In a 1981 decision, the Seventh Circuit Court of Appeals allowed a physician who claimed he was wrongfully denied staff privileges discovery of peer assessments in an antitrust action brought by the physician against the hospital. See Mem’l Hosp. v. Shadur, 664 F.2d 1058 (7th Cir. 1981).

In both cases, the courts found that the medical peer review privilege did not apply because the claims were brought under federal laws, and therefore the Federal Rules of Evidence required that the existence of the privilege be determined under federal common law principles, not solely by reference to state law. Under federal common law principles, the courts must apply a “balancing test” to determine whether the purported privilege promotes a sufficiently important interest to outweigh the need for discovery of probative evidence. Both the Fourth Circuit and Seventh Circuit found that protection of the peer review process was not sufficiently compelling to outweigh the competing interest of the discovery of relevant evidence.

The recent Eleventh Circuit decision in Adkins rests on similar grounds, finding that the presumption against privileges in federal court can be overcome only for a compelling public interest. The court found that the interest in protecting the peer review process was not compelling enough to overcome the social goal of eliminating employment discrimination, a goal that requires discovery of information essential to establishing whether such discrimination has occurred.

The court acknowledged that federal courts can consider state law when determining whether an interest is compelling enough to overcome the presumption against privileges, but noted that the policy concerns behind the state peer review laws are different than those in a federal employment discrimination case. Under state laws recognizing the peer review privilege, the need for candor in peer review discussions is balanced against plaintiffs’ interests in having access to documents for a malpractice suit. But the policy of preventing unfair use of peer review materials in a malpractice lawsuit is not implicated where the affected employee is suing for discrimination. Furthermore, disallowing the discovery of “comparator” documentation could effectively deprive the employment discrimination plaintiff of the “only” evidence that could establish his or her case.

Although it strikes down the absolute privilege, the decision recognizes that other protective means can be employed to protect the confidentiality of peer review documents. District courts can employ protective orders, confidentiality agreements and various other measures to ensure that peer review materials are used only for the limited purpose of establishing discrimination claims. These measures, of course, typically apply only after the production of the peer review documentation to the party who has initiated a lawsuit against the hospital.

In light of this decision, hospitals and those participating on a peer review committee should not operate on the assumption that an absolute privilege will apply to any litigation that might arise out of the peer review process, particularly litigation that implicates federal rights under federal statutes