U.S. 4th Circuit Court of Appeals
VIRMANI v NOVANT HEALTH INC
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ASHUTOSH RON VIRMANI, MD, Plaintiff-Appellee,
NOVANT HEALTH INCORPORATED, formerly known as Presbyterian Health
Services Corporation, Defendant-Appellant.
NORTH CAROLINA MEDICAL SOCIETY; NORTH CAROLINA HOSPITAL ASSOCIATION;
AMERICAN MEDICAL No. 00-2423 ASSOCIATION; AMERICAN HOSPITAL ASSOCIATION;
AMERICAN ASSOCIATIONOF PHYSICIANSOF INDIAN ORIGIN; AMERICAN COLLEGEOF
INTERNATIONAL PHYSICIANS; NATIONAL MEDICAL ASSOCIATION; CHARLOTTE MEDICAL
SOCIETY; NORTH CAROLINA ASSOCIATIONOF PHYSICIANSOF INDIAN ORIGIN; OLD
NORTH STATE MEDICAL SOCIETY, Amici Curiae.
Appeal from the United States District Court for the Western District
of North Carolina, at Charlotte. H. Brent McKnight, Magistrate Judge.
Argued: April 5, 2001
Decided: August 1, 2001
Before WIDENER and LUTTIG, Circuit Judges, and Rebecca Beach SMITH,
United States District Judge for the Eastern District of Virginia, sitting
Affirmed by published decision. Judge Smith wrote the opinion, in which
Judge Widener and Judge Luttig joined.
ARGUED: Lawrence Carlton Moore, III, ROBINSON, BRAD- SHAW &
HINSON, P.A., Charlotte, North Carolina, for Appellant. James Clayton
Culotta, LAW OFFICE OF KENNETH JOEL HABER, P.C., Rockville, Maryland, for
Appellee. ON BRIEF: Ever- ett J. Bowman, Louis A. Bledsoe, III,
ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for
Appellant. Kenneth J. Haber, Charles E. Hamilton, III, LAW OFFICE OF
KENNETH JOEL HABER, P.C., Rockville, Maryland, for Appellee. Julian D.
Bobbitt, Jr., Sean A. Timmons, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL
& JERNIGAN, L.L.P., Raleigh, North Car- olina, for Amici Curiae Medical
Society, et al. Normand F. Pizza, Carin A. Kramer, MILLING, BENSON,
WOODWARD, L.L.P., New Orleans, Louisiana, for Amici Curiae Association of
Physicians, et al.
SMITH, District Judge:
Novant Health, Incorporated ("Novant") appeals an order of the district
court denying its motion for protective order and granting in part Dr.
Ashutosh Ron Virmani's motion to compel records related to medical peer
reviews. Novant argues that the documents Virmani seeks to discover are
privileged. Because we decline to recognize a privilege for medical peer
review materials, we affirm the order of the district court.
Dr. Virmani is an obstetrician-gynecologist who was granted medi- cal
staff membership and clinical privileges at Presbyterian Hospital and
Presbyterian Hospital Matthews (collectively,"Presbyterian").1
During a laparoscopic procedure in 1994 at Presbyterian Hospital, Virmani
inadvertently punctured the iliac artery of a patient, creating a
life-threatening emergency. Virmani states that this is a known pos- sible
complication of the procedure. Following a lengthy series of proceedings,
Presbyterian suspended Virmani's staff membership and clinical privileges.
The first review (the "First Peer Review"), conducted by Presbyte-
rian's OB/GYN Committee, lasted five months, from March through August of
1995. The Committee reviewed all cases in which Virmani had been the
primary care physician since August of 1993 and found 24 of the 102 cases
to be problematic. Based on the Committee's report, Novant suspended
Virmani's privileges, pending a review by Presbyterian's Medical Board. At
Virmani's request, the Hearing Committee of the Medical Board, which is
composed of three physi- cians, conducted a full hearing on November 21,
1995. Following that hearing, the Medical Board voted to terminate
Virmani's medical staff privileges. Presbyterian's Board of Trustee's
upheld that deci- sion on January 19, 1996.
On January 22, 1996, Virmani filed an action against Novant in North
Carolina state court, alleging that the manner in which Presby- terian had
suspended Virmani's privileges breached its bylaws. The trial court
ordered Novant to give Virmani a new peer review pro- ceeding, to be
conducted by a peer review body composed of physi- cians from outside
Presbyterian. In August of 1997, the North Carolina Court of Appeals
affirmed the trial court's order to the extent it required a second peer
review, but reversed as to the require- ment that the second peer review
body consist of an external commit- tee. See Virmani v. Presbyterian
Health Servs. Corp., 488 S.E.2d 284, 289 (N.C. Ct. App. 1997).
Presbyterian then began a second internal peer review (the "Second Peer
Review"), using a committee com- posed of members different from those who
had conducted the First Peer Review. As a result of the Second Peer
Review, the Medical Board and the Board of Trustees again decided to
terminate Virmani's staff privileges.
Virmani filed the instant action in federal court on January 15, 1999,
alleging that the termination of his privileges constituted dis-
crimination against him on the basis of his race and national origin, in
violation of 42 U.S.C.A. §§ 1981, 1985 (West 1994). He claims that the
hospital performed its medical peer review functions in a dis- criminatory
manner, treating non-Indian physicians differently and disciplining them
less harshly. Virmani also asserted state law claims for intentional
infliction of emotional distress and negligent infliction of emotional
During discovery, Virmani sought to obtain, inter alia, all peer
review records related to all reviews of physicians for any reason, during
the twenty years preceding his request. Novant moved for a protective
order, arguing that the peer review materials were privi- leged under
North Carolina law, see N.C. Gen. Stat. § 131E-95(b) (1999), and
pursuant to Federal Rule of Evidence 501. Virmani filed a motion to compel
production of the materials.
The district court2 refused to
recognize a privilege for medical peer review materials and, in its order
filed June 27, 2000, denied Novant's motion for protective order. The
court agreed with Novant, however, that the scope of Virmani's discovery
requests was overly broad. Accordingly, in its June 27, 2000, order, the
court granted in part and denied in part Virmani's motion to compel.
Specifically, the court ordered production of "documents pertaining to
competency reviews of OB-GYN's from 1982 through 1997." J.A. 206.
On August 15, 2000, the district court denied Novant's motion for
reconsideration. The court certified its June 27, 2000, order for inter-
locutory appeal, and we granted Novant's petition for leave to appeal.
Novant argues on appeal that the district court erred in refusing to
recognize a privilege for documents related to medical peer review
proceedings. Federal Rule of Evidence 501, which governs privileges in
federal courts, provides that
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.
Fed. R. Evid. 501.3 Whether to
recognize a privilege under Federal Rule of Evidence 501 is a mixed
question of law and fact, which we review de novo. See Carman v.
McDonnell Douglas Corp., 114 F.3d 790, 793 n.2 (8th Cir. 1997).
Evidentiary privileges "are not lightly created," United States v.
418 U.S. 683, 710 (1974), because "privileges contravene the
fundamental principle that the public . . . has a right to every man's
evidence," University of Pa. v. EEOC,
493 U.S. 182, 189 (1990) (alteration in original) (internal quotation
marks omitted). When con- sidering whether to recognize a privilege, a
court must begin with "the primary assumption that there is a general duty
to give what testi- mony one is capable of giving, and that any exemptions
which may exist are distinctly exceptional, being so many derogations from
a positive general rule." Jaffee v. Redmond,
518 U.S. 1, 9 (1996) (inter- nal quotation marks omitted). Thus, in
our determination of whether to recognize a new privilege, we must heed
the Supreme Court's admonition that we should not "create and apply an
evidentiary privi- lege unless it `promotes sufficiently important
interests to outweigh the need for probative evidence.'" University of
U.S. at 189 (quoting Trammel v. United States,
445 U.S. 40, 51 (1980)); see also Pearson v. Miller, 211
F.3d 57, 67 (3d Cir. 2000) ("[F]ederal courts are to assess the
appropriateness of new privileges as they arise in particular cases, but
they are to conduct that assessment with a recog- nition that only the
most compelling candidates will overcome the law's weighty dependence on
the availability of relevant evidence.").
Novant argues that confidentiality is essential to the effectiveness of
medical peer review committees. Some courts have found that if a privilege
is not accorded to the documents considered and produced by these
committees, physicians would be reluctant to serve on the committees or
would be less candid in their evaluations if they did serve; as a result,
the quality of health care would suffer. See, e.g., HCA Health
Servs. of Va., Inc. v. Levin, 530 S.E.2d 417, 420 (Va. 2000). The
issue before us is whether the interest in promoting candor in medical
peer review proceedings outweighs the need for probative evidence in a
discrimination case.4 This is an issue
of first impression in this Circuit.5
Novant advances three arguments in support of recog- nizing such a
privilege: (1) the reasons underlying the Supreme Court's decision in
Jaffee v. Redmond,
U.S. 1 (1996), to recog- nize a "psychotherapist privilege" apply with
equal or greater force to the privilege at issue here; (2) Congress favors
a medical peer review privilege; and (3) precedent from other circuits
favors granting the privilege. We consider each argument in turn.
Novant identifies the following reasons underlying the Supreme Court's
decision in Jaffee to recognize a privilege for statements made by
a patient to her therapist during counseling sessions: the privilege
serves a compelling public end; rejection of the privilege would result in
only a modest evidentiary benefit; and all fifty states and the District
of Columbia have recognized the privilege. Novant argues that each of
these reasons applies with equal or greater force in favor of recognizing
a privilege for medical peer review materials in this case, where a
physician has alleged that he was the victim of discrimination in the peer
review process. We disagree.
The Court in Jaffee determined that the psychotherapist
privilege would serve the private interest of protecting confidential
communi- cations between psychotherapist and patient and the public
interest of "facilitating the provision of appropriate treatment for
individuals suf- fering the effects of a mental or emotional problem."
U.S. at 11. The Court concluded that these "significant" interests
out- weighed the "modest" evidentiary benefit that would be realized by
denying the privilege. Id. In particular, the Court observed that
"[w]ithout a privilege, much of the desirable evidence to which liti-
gants such as petitioner seek access . . . is unlikely to come into being.
This unspoken `evidence' will therefore serve no greater truth-seeking
function than if it had been spoken and privileged." Id. at 12.
Significantly, the issue of privilege arose in Jaffee in an
entirely different context than that of this case, in which Virmani's
claim of discrimination arises from the peer review process itself.
Therefore, Novant's reliance on Jaffee is misplaced. In Jaffee,
a police officer who had fatally shot a person was being sued by the
decedent's estate for use of excessive force. The plaintiff sought notes
from counseling sessions in which the police officer participated after
the traumatic incident. See id. at 5. The psychotherapy sessions
did not form the basis of the underlying claim of excessive force. In
contrast, Virmani has alleged that the peer review proceedings themselves
were con- ducted in a discriminatory manner. The best evidence regarding
whether Virmani was properly suspended for his medical actions, rather
than improperly suspended due to his race and national origin, is to be
found in the process by which the decision to suspend him was reached.
Our decision here is more properly guided by University of Penn-
sylvania v. EEOC,
493 U.S. 182 (1990). In that case, involving a pro- fessor who claimed
she was denied tenure because of racial and sexual discrimination, the
Supreme Court was asked to "fashion a new privilege" that the University
claimed was"necessary to protect the integrity of the peer review process,
which in turn is central to the proper functioning of many colleges and
U.S. at 189. The Court declined to create such a privilege because it
deter- mined that the costs associated with discrimination outweighed the
costs that would ensue from the disclosure of peer review materials.
See id. at 193.6 The Court found
the peer review materials to be espe- cially relevant because the
discrimination charge arose from the peer review proceedings themselves:
"[C]onfidential material pertaining to other candidates for tenure in a
similar time frame may demonstrate that persons with lesser qualifications
were granted tenure or that some pattern of discrimination appears. . . .
[T]he peer review material itself must be investigated to determine
whether the evaluations are based in discrimination and whether they are
reflected in the tenure decision."
Id. (quoting EEOC v. Franklin & Marshall Coll., 775 F.2d
110, 116 (3d Cir. 1985)) (second & third alterations in original); see
also Mar- shall v. Spectrum Med. Group, 198 F.R.D. 1, 5 (D. Me.
2000) (declin- ing to recognize privilege in action brought under
Americans with Disabilities Act, in part because the suit alleged abuse of
the peer review process); Holland v. Muscatine Gen. Hosp. , 971 F.
Supp. 385, 390 (S.D. Iowa 1997) (declining to recognize privilege in
action brought under Title VII of the Civil Rights Act of 1964 and stating
that "[t]he adequacy of the peer review investigation itself is in
We agree with Novant that the privilege it seeks would serve important
interests. However, as is the case in the academic context, the
evidentiary benefit that will be realized by refusing to grant a priv-
ilege for medical peer review materials in a discrimination case is
potentially great. The evidence Virmani seeks is crucial to his attempt to
establish that he has been the subject of disparate treatment on the basis
of race and ethnicity. To prove his allegations of disparate treat- ment,
Virmani must compare the proceedings in his case against those involving
similarly situated physicians. The interest in facilitating the
eradication of discrimination by providing perhaps the only evidence that
can establish its occurrence outweighs the interest in promoting candor in
the medical peer review process. See, e.g., University of
U.S. at 193 ("[F]erreting out . . . invidious discrimination is a
great, if not compelling, governmental interest.").
Novant further asserts that, as in Jaffee, evidence of the type
that discrimination plaintiffs such as Virmani seek will not come into
being if there is no medical peer review privilege, because physicians
will be reluctant to speak openly and, in particular, will refrain from
making remarks that would constitute evidence of discrimination. The
evidence that Virmani seeks, however, is not evidence in the form of a
"smoking gun," but rather, evidence of disparate treatment on the basis of
impermissible factors. Such evidence will not come into being in the peer
review process only if such disparate treatment ceases to occur. Thus,
unlike the situation in Jaffee, where the Court concluded that
inhibiting admissions against interest is inconsistent with the goals of
psychotherapy, and thereby harmful to societal inter- ests, here,
inhibiting the existence of the evidence at issue is not inconsistent with
the goals of medical peer review and is beneficial to societal interests.7
Novant calls to our attention the fact that all fifty states and the
District of Columbia have recognized some form of medical peer review
privilege. The Supreme Court stated in Jaffee that "the policy
decisions of the States bear on the question whether federal courts should
recognize a new privilege," and "the existence of a consensus among the
States indicates that `reason and experience' support rec- ognition of the
U.S. at 12-13. In this case, how- ever, the decision to accord
privileged status to peer review materials, in at least some states,
appears to have been based on the policy deci- sion that the interest in
promoting candor among medical personnel outweighs the interest in
providing access to evidence in medical mal- practice actions. See,
e.g., Eubanks v. Ferrier, 267 S.E.2d 230, 232 (Ga. 1980)
(construing the Georgia statute making medical peer review materials
privileged and citing cases from other states); see also Levin,
530 S.E.2d at 420 (observing that the Virginia statute making peer review
information privileged is codified in the medical malpractice chapter of
the title on civil procedure). The Georgia Supreme Court, for example,
stated, "Courts considering the question have held that the enactment of
such statutes represents a proper leg- islative choice between the
competing public concerns of fostering medical staff candor, on the one
hand, and impairing medical mal- practice plaintiffs' access to evidence,
on the other hand." Eubanks, 267 S.E.2d at 232. Other reasons that
have been advanced in support of the privilege include protecting
committee members from defama- tion suits and a loss of referrals. See,
e.g. , Baltimore Sun Co. v. Uni- versity of Md. Med. Sys.
Corp., 584 A.2d 683, 686-87 (Md. 1991).8
In contrast to a discrimination case, in which the plaintiff's claim
arises out of the peer review proceedings, a plaintiff's claim in a med-
ical malpractice case arises from actions that occurred independently of
the review proceedings. See Memorial Hosp. v. Shadur, 664 F.2d
1058, 1062 (7th Cir. 1981) (per curiam) ("To recognize hospital review or
disciplinary proceedings as privileged in the context of a malpractice
action will generally have little impact upon the plain- tiff's ability to
prove a meritorious claim. For the crucial issue in that type of case is
not what occurred at the review proceeding, but whether the defendant was
in fact negligent in his care and treatment of the plaintiff.").
There is no evidence that state legislatures considered the potential
impact on discrimination cases of a privilege for medical peer review
proceedings. Thus, the states' policy decisions, reflecting different
concerns than those implicated here, do not inform the judgment of this
court in this case. Weighing further against recognizing a privi- lege
here is that, in contrast to a medical malpractice or defamation action,
if a plaintiff succeeds in a discrimination case, he advances important
public interests in addition to his personal interests. Cf. id.
(refusing to recognize a privilege for medical disciplinary proceedings in
an antitrust case and observing that if the plaintiff was successful in
proving his claim, he would "vindicate not only his own right to practice
medicine . . ., but also the strong public interest in open and fair
competition which is embodied in the Sherman Act under which the case
We should not recognize a privilege "where it appears that Con- gress
has considered the relevant competing concerns but has not pro- vided the
privilege itself." University of Pa.,
U.S. at 189. The district court below found that Congress had
considered and rejected a privilege for medical peer review materials when
it enacted the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42
U.S.C.A. §§ 11101-11152 (West 1995).9
Novant argues that this find- ing is in error, and that, to the contrary,
Congress favors a medical review privilege. Although we cannot conclude
that Congress actually considered and rejected a privilege for medical
review materials when enacting the HCQIA, it is clear that Congress
considered the relevant compet- ing interests--providing incentive and
protection to physicians who would serve on review committees versus
allowing putative victims of discrimination to pursue their claims--and
decided to give greater weight to the latter.
Congress's findings with respect to the HCQIA reflect its concern that
medical malpractice and the need to improve the quality of medi- cal care
were national problems. See 42 U.S.C.A. § 11101(1). Con- gress
determined that effective peer review would provide a remedy to these
problems. See id. § 11101(3). However, "[t]he threat of pri- vate
money damage liability under Federal laws, including treble damage
liability under Federal antitrust law, unreasonably discour- ages
physicians from participating in effective professional peer review."
Id. § 11101(4). Thus, Congress concluded that "[t]here is an
overriding national need to provide incentive and protection for phy-
sicians engaging in effective professional peer review." Id. §
11101(5). To provide this incentive and protection, Congress pro- vided
immunity from liability in damages to participants in the activi- ties of
professional review bodies meeting specified standards. See id. §
11111(a). However, Congress created an express exception to the immunity
provision in the case of civil rights actions. See id. §
11111(a)(1) (providing that the exemption from liability in damages "shall
not apply to damages under any law of the United States or any State
relating to the civil rights of any person or persons, including the Civil
Rights Act of 1964, 42 U.S.C. 2000e, et seq. and the Civil Rights Acts, 42
U.S.C. 1981, et seq."). Thus, insofar as Congress has considered the
competing interests, it has not elevated the interest in encouraging peer
review over the interest in combating discrimination.10
Novant contends that Congress favors a medical peer review privi- lege, as
evidenced by the enactment of a privilege for the Department of Defense
and the Department of Veterans Affairs. See 10 U.S.C.A. § 1102(a)
(West 1998) (providing that "[m]edical quality assurance records created
by or for the Department of Defense as part of a medi- cal quality
assurance program are confidential and privileged"); 38 U.S.C.A. § 5705(a)
(West 1991) (providing that"[r]ecords and docu- ments created by the
Department [of Veterans Affairs] as part of a medical quality-assurance
program . . . are confidential and privi- leged"). However, these
provisions also demonstrate that Congress will create a medical peer
review privilege when it is so inclined.
Finally, Novant argues that recognition of the privilege is sup- ported
by cases from the Fifth and Seventh Circuits. In fact, the Sev- enth
Circuit expressly declined to recognize a medical peer review privilege in
Memorial Hospital v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981)
(per curiam) (rejecting the privilege in a civil antitrust action and
stating that "[t]he public interest in private enforcement of federal
antitrust law in this context is simply too strong to permit the exclusion
of relevant and possibly crucial evidence by application of the Hospital's
Novant argues that the holding in Shadur was subsequently under-
mined by the Seventh Circuit in Marrese v. American Academy of
Orthopaedic Surgeons, 726 F.2d 1150 (7th Cir. 1984) (en banc),
rev'd on other grounds,
470 U.S. 373 (1985). In Marrese, however, the Seventh Circuit
did not address the issue of whether medical peer review documents should
be privileged. Indeed, rebuffing a First Amendment argument raised by the
party seeking to withhold docu- ments, the court stated, "If [the argument
is] meant to establish a com- plete immunity from pretrial discovery of
these materials[,] the argument is untenable in light of [Shadur],
which rejected a claim of privilege for a hospital's records of
disciplinary proceedings against staff physicians." 726 F.2d at 1159.11
The Fifth Circuit case cited by Novant does not support its position
either. At issue in United States v. Harris Methodist Fort Worth,
970 F.2d 94 (5th Cir. 1992), was the reasonableness of an administrative
search that the Department of Health and Human Services proposed to
conduct of a hospital's records to determine if the hospital was in
compliance with civil rights laws. See 970 F.2d at 96, 100-02. This
case is, therefore, inapposite, since it involved the balancing of inter-
ests under the Fourth Amendment, not Federal Rule of Evidence 501.12
In summary, only the Seventh Circuit has squarely addressed the issue
of whether peer review documents should be privileged in fed- eral courts,
and that court has declined to recognize the privilege.13
We, too, decline to recognize such a privilege here.
We hold that the interest in obtaining probative evidence in an action
for discrimination outweighs the interest that would be fur- thered by
recognition of a privilege for medical peer review materials. Therefore,
we decline to recognize such a privilege. Accordingly, the order of the
district court is affirmed.
1.The hospitals are non-parties that are
subsidiaries of Novant, formerly known as Presbyterian Health Services
2.The case was referred to Magistrate
Judge McKnight, pursuant to 28 U.S.C.A. § 636(c)(2) (West 1993).
3.The rule continues: "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." Fed. R. Evid. 501. If North
Carolina law supplied the rule of decision, the materials would be
privileged. See N.C. Gen. Stat. § 131E- 95(b) (providing that "[t]he
proceedings of a medical review committee, the records and materials it
produces and the materials it considers . . . shall not be subject to
discovery or introduction into evidence in any civil action against a
hospital"). This case involves a federal question together with pendent
state law claims, however, and the Supreme Court has not addressed the
question of whether federal common law controls in such a situation.
See Jaffee v. Redmond,
518 U.S. 1, 16 n.15 (1996). We agree with our sister circuits that in
a case involving both federal and state law claims, the federal law of
privilege applies. See Pearson v. Miller, 211 F.3d 57, 66 (3d Cir.
2000); Hancock v. Dodson , 958 F.2d 1367, 1373 (6th Cir. 1992);
von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Memorial
Hosp. v. Shadur, 664 F.2d 1058, 1061 & n.3 (7th Cir. 1981) (per curiam).
4.We emphasize that Novant seeks to
prevent Virmani from discovering peer review documents for use in this
case of alleged discrimination; patient confidentiality is not at issue
here, nor is public disclosure of other confidential medical records.
There is an important distinction between privilege and protection of
documents, the former operating to shield the documents from production in
the first instance, with the latter operating to preserve confidentiality
when produced. An appropriate pro- tective order can alleviate problems
and concerns regarding both confi-
dentiality and scope of the discovery material produced in a particular
case. Indeed, in the district court's order of June 27, 2000, refusing to
recognize a privilege for peer review materials, the court limited the
scope of the discovery requests in terms of the time period covered and
the medical specialty involved. Further, on September 12, 2000, a con-
sent protective order was entered by the court, which order provided for
the protection of confidential documents, and, in particular, restricted
the use of the confidential documents to the instant action. A court
likewise can protect the identities of third parties, i.e., the patients
and the other physicians who were the subjects of prior peer reviews, as
well as exclude or redact extraneous confidential medical information,
through an appropriate order. See Marrese v. American Acad. of
Orthopaedic Surgeons, 726 F.2d 1150, 1160 (7th Cir. 1984) (en
banc) (describing means by which immaterial confidential information could
be protected, including in camera review of documents and redaction
of the names of reviewers pending a showing of relevance), rev'd on
470 U.S. 373 (1985); cf. Memorial Hosp. v. Shadur , 664 F.2d
1058, 1063 n.6 (7th Cir. 1981) (per curiam) (suggesting that a protective
order providing for in camera review of requested material to
determine its relevance would mitigate the costs of disclosure of
5.Relevant case law from the Fifth and
Seventh Circuits is discussed infra Part II.C.
6.Crucial to the Court's holding was its
determination that Congress had balanced the relevant interests and had
declined to create a privilege. See University of Pa.,
U.S. at 189-93. We discuss Congress's treat- ment of a medical peer
review privilege infra Part II.B.
7.Furthermore, the motivations of those
seeking the privilege here differ from those in Jaffee. A patient
in need of a psychotherapist would have a personal motivation to seek
mental health treatment, which might be diminished in the absence of a
privilege. A doctor called upon to serve on a medical peer review
committee may have a sense of obligation to the public at large, in
addition to a personal desire to maintain quality health care, which may
overcome any reluctance to serve and be forth- coming on a peer review
committee, even in the absence of a privilege. See LeMasters v. Christ
Hosp., 791 F. Supp. 188, 191 (S.D. Ohio 1991) ("[M]ost physicians feel
an ethical duty to the profession and to the pub- lic to keep the standard
of health care high.").
8.One commentator has characterized the
need for confidentiality of medical peer review materials as follows:
A physician's qualifications, competence, and ethics all are called
into question when a medical staff committee is requested to review his
application for staff privileges, to determine the extent of his clinical
privileges, or to assess the quality of his work. The nature of these
activities suggests that committee par- ticipants may lose professional
friends, as well as referrals, from physicians who receive unfavorable
reviews. In addition, the committee members, and the hospital as well, may
be exposed to costly litigation alleging defamation, the most common claim
arising from committee activities.
Charles David Creech, Comment, The Medical Review Committee Privi-
lege: A Jurisdictional Survey, 67 N.C. L. Rev. 179, 179 n.4 (1988)
(inter- nal quotation marks omitted).
9.The court followed the reasoning of
other district courts that had con- sidered the issue and determined that
Congress decided not to establish a privilege for peer review documents.
See, e.g. , Johnson v. Nyack Hosp., 169 F.R.D. 550, 560 (S.D.N.Y.
10.Novant argues that, despite the fact
that Congress failed to enact a privilege, Congress intended to protect
medical peer review materials. Novant observes that Representative Waxman,
the main sponsor of the House bill, stated that the bill was not intended
to override state shield laws "that restrict the type of evidence that may
be introduced in lawsuits challenging a disciplinary action in the context
of peer review." 132 Cong. Rec. 33,117 (1986). However, Representative
Waxman also indi- cated that the bill was not intended to shield acts of
discrimination. See id. at 30,766 ("Actions that violate
civil rights laws . . . will not be pro- tected under this bill.").
11.While the Seventh Circuit did, as
Novant claims, consider the under- lying policy of protecting the files at
issue in its review of the district court's discovery order and subsequent
contempt order, the Seventh Cir- cuit did not find that the interest in
the confidentiality of the files was paramount. Rather, the court
concluded that "there were various devices that the district judge could
have used to reconcile the parties' competing needs." 726 F.2d at 1160.
The court emphasized, in fact, that its holding was limited: "We do not
hold that all files of all voluntary associations are sacrosanct; we do
not even hold that the membership files of an asso- ciation of medical
professionals are sacrosanct. They are discoverable in appropriate
circumstances, subject to appropriate safeguards." Id. at 1161.
12.Although the Fifth Circuit addressed
the hospital's argument that the documents sought were privileged, this
portion of the opinion is dicta. See 970 F.2d at 103 ("[B]ecause
we affirm the district court's determina- tion that the proposed search
exceeded bounds of reasonableness, we need not define the scope of any
13.The district courts that have
addressed the issue in discrimination cases have all rejected a medical
peer review privilege. See, e.g., Hol- land, 971 F.
Supp. at 389; Johnson v. Nyack Hosp., 169 F.R.D. 550, 561 (S.D.N.Y.
1996); Robertson v. Neuromedical Ctr. , 169 F.R.D. 80, 83-84 (M.D.
La. 1996); LeMasters v. Christ Hosp., 791 F. Supp. 188, 191 (S.D.
Ohio 1991). None of the cases cited by Novant that recognize the privi-
lege involved discrimination claims.