Opinion
Civil Action No. 99-2830, SECTION: "J"(1).
October 2, 2000.
HEARING ON MOTIONS
APPEARANCES: Submitted on briefs
MOTION: MOTION OF WEST JEFFERSON MEDICAL CENTER TO QUASH AND
MOTION FOR PROTECTIVE ORDER
DENIED
Before the undersigned is the motion of the non-party, Hospital Service District No. 1 of Jefferson Parish d/b/a West Jefferson Medical Center ("West Jeff"), to quash a subpoena duces tecum filed by the defendants, George Barnes, M.D., Willamena Paretti, Darrell Blaylock, Gerard DiLeo, M.D. and Lakeview Medical Center, L.L.C. d/b/a Lakeview Regional Medical Center ("Lakeview").
The subpoena includes requests that West Jeff produce documents relating to the medical license of Richard E. Sabatier, M.D. ("Sabatier"), the plaintiff, complaints about him by patients, nurses and physicians, peer review committee records on him and documents provided to the State Board of Medical Examiners or any professional regulatory body concerning him.
Lakeview allegedly determined that Sabatier's practice patterns fell below its standards and it terminated his privileges at Lakeview after votes of its peer review committees. Sabatier filed this action against Lakeview and the other defendants alleging the following causes of action: (1) claims under the Americans with Disabilities Act, (2) claims under the Rehabilitation Act, (3) breach of contract, (4) bad faith breach of contract, (5) abuse of rights, (6) tortious interference with contract, (7) defamation, (8) intentional infliction of emotional distress, and (9) unfair trade practices/consumer protection law violations. See description of claims in denial of defendants' motion to dismiss by United States District Judge Barbier. Rec. doc. 21.
West Jeff presents the following arguments in support of its motion to quash: (1) the peer review committee records on Sabatier are privileged under La. R.S. 13:3715.3, (2) the peer review records are privileged pursuant to the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101, et seq. ("HCQIA"), and (3) any good to be done by allowing the discovery will be outweighed by the damage the discovery will cause to the peer review process.
Sabatier takes no position on the discovery sought by Lakeview and the other defendants.
West Jeff does not contend that the documents sought by the defendants are not relevant or not likely to lead to the discovery of admissible evidence. Sabatier filed this complaint in federal court and brought claims under the Americans with Disabilities Act and the Rehabilitation Act, claims over which the federal courts have exclusive jurisdiction. Rec. doc. 21. Sabatier's complaint also includes pendent state law claims.
In the well reasoned decision by Magistrate Judge Riedlinger in Robertson v. Neuromedical Center, 169 F.R.D. 80 (E.D.La. 1996), he concluded that the policy of Fed. Rules Evid. Rule 501 should not be set aside simply because of the existence of pendent state law claims in primarily a federal question case.
(T)he weight of authority among courts that have confronted this issue in the context of discovery is that the federal law of privilege governs even where the evidence sought might be relevant to pendent state law claims.169 F.R.D. at 82-83. The starting point is not the Louisiana law of privilege.
The weight of authority is that there is no peer review privilege under federal common law or federal statutory law, including the HCQIA. Robertson v. Neuroniedical Center, 169 F.R.D. at 83 and Pagano v. Oroville Hospital, 145 F.R.D. 683, 692 (E.D. Cal. 1993). These decisions are supported by the Supreme Court's decision in University of Pennsylvania v. E.E.O.C., 110 S.Ct. 577 (1990), declining to recognize a qualified common-law privilege against disclosure of confidential peer review materials. The purported peer review privilege is analogous to the self-critical analysis privilege. The Fifth Circuit has not recognized such a privilege. In Re: July 5, 1999, Explosion at Kaiser Aluminum Chemical Company, 1999 WL 717513 (E.D.La.).
West Jeff relies on Wei v. Bodner, 127 F.R.D. 91, 99 (D.N.J. 1989), to show the existence of a federal statutory privilege.Pagano v. Oroville Hospital, 145 F.R.D. at 693-694, disagreed with this decision. The undersigned concurs with the reasoning inRobertson and Pagano.
West Jeff also argues that Pagano supports finding a federal statutory privilege. West Jeff's memorandum in support of motion at pg. 4. West Jeff's characterization of Pagano is taken out of context. The decision states,
There is no federal statutory basis for a medical peer review privilege. The HCQIA does not establish such a broad based privilege. It does accord antitrust liability immunity to medical "professional review" participants whose actions conform to the standards of the Act, and protection against extraneous disclosure of confidential information thus generated; however, these protections are based on the assumption that the underlying professional review actions were conducted "in the reasonable belief that the action was in the furtherance of quality health care." This "integrity" requirement is underscored by the many exceptions to immunity . . . While the Act, in asserted purpose and protections, comes close to according a blanket immunity and privilege from disclosure of all medical professional review activities, it intentionally stops short of this. The Act thus infers support of disclosure when the very legitimacy of a medical peer review committee proceeding is at issue.145 F.R.D. at 692-93 (citations omitted). While the legitimacy of West Jeff's peer review committees are not at issue, Lakeside's are. Under the circumstances of this case there is no federal statutory privilege immunizing the disclosure of West Jeff's peer review records.
In Robertson the court refused to find La. R.S. 13:37 15.3 "sufficiently compelling, in light of reason and experience, to be applied as a matter of federal common law." 169 F.R.D. at 84. The undersigned agrees. In Pendleton Memorial Methodist Hospital v. Mutual of Omaha, 1999 WL 203274 (E.D.La.), the undersigned found that the confidentiality created by 13:1375.3 was not absolute. This is consistent with the conclusion that it should not be applied as a matter of federal common law.
West Jeff's final argument is that the potential damage to the peer review process outweighs the need for the discovery. Sabatier's complaint alleges that Lakeside and the other defendants have subverted the peer review process to deny him privileges at Lakeside. In short the integrity of Lakeside's peer review process has been placed at issue. West Jeff's peer review records are relevant to the resolution of the issue. In this sense the disclosure of the records enhances rather than diminishes the peer review process.
It is ORDERED that West Jeff's motion to quash and for protective order is DENIED. West Jeff shall produce the documents responsive to the dcfendants' subpoena within fifteen (15) days. Prior to producing the records West Jeff shall redact the identity of patients and, where appropriate employ a letter or numerical code to identify the patients. The documents shall be produced subject to a protective order to be drafted by the parties. Lakeview shall reimburse West Jeff the reasonable costs of preparing, including redacting the identity of patients, and copying the documents.