Opinion
CIVIL ACTION NO: 03-2585 SECTION: "R"
October 29, 2003
ORDER AND REASONS
Before the Court is the defendants' motion for review of magistrate judge's order. For the following reasons, the Court denies defendant's motion and affirms the magistrate judge's order.
I. Background
Plaintiff Dr. Sophia Rdzanek holds medical staff privileges at the Hospital Service District #3, Parish of Lafourche d/b/a Thibodaux Regional Medical Center ("TRMC"). In her complaint, she avers that in July 2002, the Medical Executive Committee of the Medical Staff of TRMC ("MEC") recommended to the Board of Commissioners of TRMC that the Board reduce Dr. Rdzanek!s medical staff privileges to courtesy privileges. She indicates that the MEC later recommended termination of Dr. Rdzanek's privileges. Dr. Rdzanek notes that she appealed the NEC's recommendation pursuant to TRMC's Medical Staff Bylaws, and a Hearing Panel heard her appeal. She avers that in its decision of July 14, 2003, the Hearing Panel rejected the second MEG recommendation and instead accepted the first MEG recommendation to reduce Dr. Rdzanek's medical staff privileges. She states that the Hearing Panel added a provision that would allow her to perform invasive catherization procedures under the direction of a proctor. Dr. Rdzanek notes that she appealed this decision to the Board of Commissioners of TRMC. She indicates that on September 9, 2003, the Board rendered a final decision that modified the Hearing Panel's decision and adopted the initial MEG recommendation without the additional provision allowing her to perform supervised invasive catherization procedures.
Dr. Rdzanek filed this action against TRMC, the TRMC Board of Commissioners, the MEG, and Greg Stock, TRMC's Chief Executive Officer. She alleges several claims against the defendants, including a claim under 42 U.S.C. § 1983 based on her contention that the defendants violated her due process rights when they reduced her medical staff privileges. The Court denied the plaintiff's motion for a temporary restraining order and ordered a hearing on plaintiff!s application for a preliminary injunction. The hearing is restricted to the issue of whether plaintiff's Section 1983 claim warrants injunctive relief. The Court scheduled the hearing to allow the parties time to conduct discovery on this issue. In conjunction with the deposition of the Chief Quality Resource Officer of TRMC, plaintiff served a subpoena duces tecum for production of, inter alia, hospital peer review files of all other cardiologists with staff privileges at TRMC. Defendants moved to quash plaintiff's subpoena and for a protective order limiting discovery on plaintiff's application for preliminary injunction to the Section 1983 claim. Magistrate Wilkinson denied defendants1 motion to quash and for protective order in an Order and Reasons dated September 30, 2003. (Rec. Doc. 20). Defendants now move this Court for review of the magistrate judge's order. The Cardiovascular Institute of the South and Dr. Wayne Pharo, as non-parties to this suit, filed memoranda in support of the defendants1 motion for review. Defendants contend that the Court should quash plaintiff's subpoena because the requested peer review files are privileged. For the following reasons, the Court denies defendants1 motion and affirms the magistrate judge's order.
II. Analysis
A. Scope of Discovery
To begin with, the Court concurs with the magistrate judge's refusal to limit discovery in the manner requested by the defendants. The parties need not limit the depositions of witnesses that are deposed in conjunction with the preliminary injunction hearing to only the Section 1983 issue. The Court finds no material justification for such a limitation and agrees with the magistrate's view that the interests of judicial efficiency and the convenience of the witnesses are best served by deposing each witness once. Otherwise, the witnesses would be subjected later to additional depositions on the other issues in the. case, and inevitably there would be disputes about what was or should have been covered in the first deposition. A single deposition for all purposes obviates this potential squabbling.
B. Federal Privilege Law Applies
The defendants and non-parties who filed supporting memoranda contend that the peer review files requested by the plaintiff are privileged. To determine whether these documents are privileged, the Court must first determine whether state or federal privilege law governs the existence of a privilege in federal court. Federal Rule of Evidence 501 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. 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.
Under this rule, Courts turn to federal law regarding privileges in federal question cases, but look to state law privileges when state law provides the rule of decision for the plaintiff's claims. Rule 501 does not specify whether federal or state law privileges govern in cases involving federal claims and pendant state law claims. Courts addressing the issue have held that when the allegedly privileged information relates to the federal law claim, federal law of privilege governs all claims of privilege raised in the litigation. See, e.g., Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992); Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992). Courts have applied federal law of privilege "even if the witness-testimony is relevant to a pendant state law count which may be controlled by a contrary state law of privilege." Hobbs, 967 F.2d at 467. Accordingly, the Court affirms the magistrate judge's determination that federal privilege law governs in this case.
In this case, the peer review documents are arguably relevant to the plaintiff's state law claim under the Louisiana Unfair Trade Practices and Consumer Protection Law. Under Louisiana law, the peer review documents at issue would be privileged. See LA. REV. STAT. § 13:3715. 3(A)(2). Because the peer review documents relate to the plaintiff's Section 1983 claim, however, the Court applies federal privilege law to determine the admissibility of the materials.
C. No Federal Medical Peer Review Privilege
Under Rule 501, when federal courts apply federal law, they must determine whether "common law" recognizes the privilege at issue. Courts look to relevant federal case law and turn to analogous cases in the absence of cases on point. See, e.g., Nilavar v. Mercy Health System — Western Ohio, 210 F.R.D. 597, 601-605 (S.D.Ohio 2002) (discussing Supreme Court's determination that federal law does not recognize an academic peer review privilege to support its conclusion that federal case law does not recognize a medical peer review privilege). As discussed in Nilavar, the Supreme Court declined to establish a federal law privilege for academic peer review materials in University of Pennsylvania v. Equal Employment Opportunity Comm'n, 493 U.S. 182, 189 (1990). The University of Pennsylvania Court noted that Congress had not created a privilege for academic peer review documents when it extended Title VII to educational institutions and provided broad Equal Employment Opportunity Commission subpoena powers. Id. The Court reviewed the case law and found that it did not support a peer review privilege. Id. at 194-195. The Court also balanced the costs of disclosure against the benefits of access to information and decided against a federal academic peer review privilege. The Court rejected the petitioner's argument that disclosure of peer review evaluations would have a significant "chilling effect" on candid evaluations. Id. at 200-01. The Court noted that although "it is possible that some evaluators may become less candid, . . . [n]ot all academics will hesitate to stand up and be counted when they evaluate their peers." Id. Keeping in mind the University of Pennsylvania Court's reasoning regarding the academic peer review privilege, the Court turns to federal common law decisions addressing the issue of a medical peer review privilege.
The Nilavar court thoroughly reviewed federal common law and concluded that "a physician peer review privilege does not exist in the federal common law." Id. at 601-605 (citing numerous cases finding no peer review privilege at federal common law and distinguishing outliers as anomalous). This Court has reviewed federal opinions published after Nilavar and found nothing to contradict the Nilavar court's conclusion. See Tortorici v. Goord, 216 F.R.D. 256, 259 (S.D.N.Y. 2003) (finding no federal privilege for medical peer review records) (citing Johnson v. NyackHosp., 169 F.R.D. 550, 556-61 (S.D.N.Y. 1996)). In addition, the Court notes that Magistrate Judge Shushan concluded in Sabatier v. Barnes, 2000 WL 1473597, at *2 (E.D.La.), that "[t]he weight of authority is that there is no peer review privilege under federal common law or federal statutory law."
The defendants and non-parties contend in their memoranda that the Health Care Quality Immunity Act ("HCQIA") supports the argument that the peer review documents at issue are privileged. The HCQIA provides qualified immunity for persons providing information to a professional review body regarding the competence or professional conduct of a physician." 42 U.S.C. § 11111(a). The Cardiovascular Institute of the South and Dr. Pharo cite to the court's finding in Cohn v. Wilkes General Hosp., 127 F.R.D. 117 (W.D.N.C. 1989), that the HCQIA supported "the public policy which protects as privileged the medical review process." The majority of courts addressing the issue, however, have concluded that HCQIA does not establish a federal peer review privilege. See, e.g., Nilavar, 210 F.R.D. at 602 (disagreeing with the Cohn court's analysis of the HCQIA); Syposs v. United States, 63 F. Supp.2d 301, 306-07 (W.D.N.Y. 1999) (concluding that Congress balanced the need for the confidentiality of the review process with other competing interests and did not establish a medical peer review privilege); Johnson v. NyackHosp., 169 F.R.D. 550, 560-61 (S.D.N.Y. 1996) (finding that the HCQIA does not support a medical peer review privilege); Robertson v. Neuromedical Center, 169 F.R.D. 80, 83-84 (M.D.La., 1996) (same); Swarthmore Radiation Oncology, Inc. v. Lapes, 1993 WL 517722, at *3 (E.D.Pa.) (same); Teasdale v. Marin General Hosp., 138 F.R.D. 691, 694 (N.D.Cal. 1991) (same, noting that "Congress spoke loudly with its silence in not including a privilege against discovery of peer review materials in the HCQIA"). Clearly, the HCQIA nowhere provides for evidentiary exclusion of peer review materials. The Court concludes that the HCQIA does not establish a federal statutory medical peer review privilege.
As a result of the above, the Court concurs with Magistrate Judge Wilkinson's conclusion that the peer review records in this case are not privileged under existing federal privilege law.
If the court determines that privilege does not exist under federal common law, then a secondary question is presented, namely, should the court recognize the privilege. See University of Pennsylvania, 493 U.S. at 189 (recognizing that Rule 501 provides federal courts with the flexibility to develop rules of privilege on a case-by-case basis). Federal courts strictly construe privileges because privileges contravene the fundamental principle that "the public has a right to every man's evidence." Trammel v. United States, 445 U.S. 40, 50 (1980); see also University of Pennsylvania, 493 U.S. at 189 (noting that the Court is disinclined to exercise the authority to develop rules of privilege expansively). Courts recognize a privilege only to the very limited extent that "`excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Id. (quoting Elkins v. United States, 364 U.S. 206, 234 (1960)); see also Jaffee v. Redmond, 518 U.S. 1 (1996) (concluding that federal law should recognize a psychotherapist-patient privilege).
The Court declines to recognize a new peer review privilege in this case. Here, Magistrate Wilkinson ordered that the information produced be subject to a protective order designed to keep the information confidential. The protective order limits the use of the information to this litigation. 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. See id. at 607, see also Trammel, 445 U.S. at 50. Defendants argue that disclosure of the documents sought by plaintiff would have a chilling effect on the willingness of other physicians and nurses to report incidents that affect patient care and would discourage candor in the peer review process. (Def.'s Mot. for Review of Mag. Judge's Order, at pp. 11-12). The Court finds that the limited and protected disclosure of peer review materials in this litigation will not materially impede candid evaluations that participants are under a professional duty to provide. See University of Pennsylvania, 493 U.S. at 200-01 (rejecting petitioner's contention that disclosure of academic peer review information would decrease the quality and relevance of peer review evaluations because of a material "chilling effect" on candid evaluations). Accordingly, the Court concludes that subpoenaed peer review documents are not privileged.
D. Relevance
Defendants contend that the peer review files of other cardiologists are not relevant to the plaintiff's Section 1983 claim. They argue that the plaintiff's claim is based on allegations that TRMC did not afford her proper due process, and the peer review of other cardiologists at TRMC is not relevant to whether the due process afforded to her was sufficient.
Due process requires "`notice and opportunity for hearing appropriate to the nature of the case.'" Boddie v. Connecticut, 401 U.S. 371, 378 (1971) (quoting Mullane v. Central Hannover Bank Trust Co., 339 U.S. 306, 313 (1950)). The determination of whether the plaintiff received due process is therefore necessarily dependent on what due process is appropriate under the circumstances. The Court finds that the due process that was actually afforded to other cardiologists could be relevant to the nature of the due process that was appropriate in this case. The Court cautions, however, that since plaintiff has not pleaded an equal protection claim, it is only the nature of the process afforded others, rather than the outcome of the proceedings, that is potentially relevant to plaintiff's due process claim. As to plaintiff's other claims, the peer review materials are potentially relevant to the antitrust issues raised in this case. The Court therefore concurs with the magistrate judge's finding that the evidence of other cardiologists' reviews is relevant to Dr. Rdzanek's claim.
III. Conclusion
For the foregoing reasons, the Court denies defendants' motion for review of the magistrate's order and affirms the magistrate judge's order denying defendant's motion to quash the plaintiff's subpoenas.