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August 31, 1999


The opinion of the court was delivered by: Foschio, United States Magistrate Judge.



This matter was referred to the undersigned on May 26, 1998 for determination of any non-dispositive matters. In a Decision and Order, dated July 1, 1998 ("D & O"), the court granted Plaintiffs' motion to enforce subpoenas issued to non-parties Sisters of Charity Hospital ("Sisters Hospital") and Erie County Medical Center ("ECMC"), dated April 13, 1998 and denied non-party Children's Hospital of Buffalo's ("Children's Hospital") ("the hospitals") motion to quash Plaintiffs' subpoena, dated April 14, 1998. Treating the non-parties appeals of the Decision and Order as a motions for reconsideration, the matter was referred to the undersigned by the district judge on July 24, 1998.


Plaintiffs' subpoenas seek "peer review" records as to procedures undertaken by Dr. Lorenzo T. Teruel and applications, including supporting documentation, submitted by Dr. Teruel for privileges at each of the non-party hospitals. Dr. Teruel was a Veteran's Administration Hospital physician whose surgery is at issue in this Federal Tort Claims Act case. Relying on New York Education Law § 6527 subd. 3 and New York Public Health Law § 2805-m, each of the non-party hospitals refused compliance asserting the requested information was privileged and thus exempt from disclosure under these statutes.

Section 6527 subd. 3 of the Education Law exempts from disclosure pursuant to Article 31 of the New York Civil Practice Act and Rules, providing for pretrial discovery in state court civil cases, "proceedings or records relating to performance of a medical or quality assurance review function." N.Y.Educ.L. § 6527 subd. 3 (McKinney 1985). As relevant, section 2805-m of the Public Health Law creates a similar exemption from disclosure for records relating to review of the quality of medical care given in hospitals, evaluation of staff privileges and credentials and capacity of health care providers employed by or associated with a hospital. N.Y. Public Health L. 2805-m (McKinney 1993). The statutes do not apply to statements made by a person attending a meeting of a quality assurance committee if the person is a party to an action the subject of which was reviewed at the meeting. Both statutes exclude the testimony of persons participating in such reviews as to what occurred at a quality assurance meeting. Additionally, both statutes provide for immunity from suit as to statements or actions taken in connection with such quality assurance review functions unless based on information which is "untrue and communicated with malicious intent." N.Y. Public Health Law § 2805-m (McKinney 1993). However, as the instant action is one pursuant to the Federal Tort Claims Act, the existence of an asserted privilege is a federal question to be determined in accordance with Fed.R.Evid. 501 (where federal law provides the rule of decision asserted privileges are to be determined in accordance with principles of the common law and based on "reason and experience"). Based on its review of relevant authority, the court found that a medical "peer review" privilege should not be recognized in federal actions. D & O at 12-13. Accordingly, it granted Plaintiffs' motion to compel and denied Children's Hospital's motion to quash.

Oral argument on the motion for reconsideration was conducted on January 28, 1999. Supplemental material in the form of copies of legislative history related to the New York statutes relied upon by the hospital non-parties were submitted on March 1, 1999 by Children's Hospital (Doc. # 106). Affidavits were also submitted by the medical director of each hospital (Affidavit of Charles Massaro, M.D., Medical Director, Sisters Hospital dated July 7, 1999) ("Massaro Affidavit") (Doc. # 107); (Affidavit of Margaret W. Paroski, M.D.,Medical Director, Erie County Medical Center dated July 15, 1999) ("Paroski Affidavit") (Doc. # 81); Affidavit of Paul Montgomery, M.D., President of the Medical Staff, Kaleida Health, successor to Children's Hospital, dated July 2, 1999) ("Montgomery Affidavit") (Doc. # 108). ECMC and Children's Hospital also submitted, in accordance with the court's order dated June 23, 1999, privilege logs describing the information relevant to Plaintiffs' subpoena as to which the privilege is asserted. (Doc.#'s 80, 109, respectively). Sisters Hospital had filed a privilege log with its opposition to Plaintiff's motion. For the reasons discussed, the non-parties' motion for reconsideration is GRANTED and upon reconsideration the court adheres to its Decision and Order of July 1, 1998 declining to recognize a medical peer review privilege.


In the Decision and Order, the court relied on the Supreme Court's rejection of peer review privilege in University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). D & O at 7 - 9. Additionally, the court found significant Congress' failure to establish a general medical peer review privilege when it enacted the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101, et seq. ("HCQIA" or "the Act") which created qualified immunity from suit to officials conducting medical peer reviews, 42 U.S.C. § 11111(a)(1) (no liability under federal or state law except the Civil Rights Act of 1964, the Civil Rights Acts, and the actions by the United States and state attorney general), but did not protect documents created in the hospitals' peer review process, D & O at 8, (citing Johnson v. Nyack Hospital, 169 F.R.D. 550, 560 (S.D.N.Y. 1996); Robertson v. Neuromedical Center, 169 F.R.D. 80, 84 (M.D.La. 1996); Swarthmore Radiation Oncology, Inc. v. Lapes, 1993 WL 517722 (E.D.Pa. 1993)). The court noted that under the Act, only the information submitted to the national health-care-quality clearinghouse established by the Act is confidential and not to be disclosed. D & O at 9. Based on the Supreme Court's rejection of a peer review privilege in University of Pennsylvania, supra, and Congress' failure to enact a privilege for medical peer review information in the HCQIA, the court held the requested information was not privileged as matter of federal common law. D & O at 12-13.

The hospitals contend that University of Pennsylvania is distinguishable as the competing interest in that case was enforcement of federal anti-discrimination in employment laws whereas in this case the issue is a malpractice claim. Memorandum of Law in Support of Objections to Magistrate Judge's Decision and Order, filed July 15, 1998 (Doc. # 39) ("Sisters Hospital Memorandum") at 8. However, in University of Pennsylvania, the fact that because the underlying action was based on job discrimination the Court found that Congress' failure to establish a peer review privilege when it enacted Title VII argued against doing so pursuant to the authority granted to the courts under Fed. R.Evid. 501. University of Pennsylvania, supra, at 189, 110 S.Ct. 577. The competing interest to the asserted privilege in University of Pennsylvania was the same interest in any litigation, i.e., the "need for probative evidence." Id. (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)).

Moreover, the hospitals' argument fails to recognize that Congress' waiver of sovereign immunity in the Federal Tort Claims Act for personal injury based on the torts of government agents also represents a "substantial governmental interest," Sisters Hospital Memorandum at 8, quoting Robertson, supra, at 83. To suggest that the search for truth by the courts has stronger justification and may override an asserted peer review privilege in a discrimination case but not a malpractice case minimizes the strong public interest in the prevention and compensation of serious personal injuries or death caused by government employees, an interest at least equal to the interest in eradicating and compensating for violations of a person's civil rights. The value of protection against job discrimination is substantially reduced if the ability to enjoy its benefit is physically impaired or ended. Privileges usually do not vary depending upon the nature of the action as their very purpose is to bar compelled disclosure irrespective of the nature of the proceeding in connection with which they may arise. The hospitals' attempt to distinguish University of Pennsylvania on the basis of the underlying causes of actions in that case and the other cases relied upon by the court from the one at bar is without merit.

The hospitals also contend that the court erred in failing to recognize that at least two cases, decided after University of Pennsylvania, "endorsed" a peer review privilege. Sisters Hospital Memorandum at 5-6. Specifically, Sisters Hospital asserts that the court overlooked Freeman v. Fairman, 917 F. Supp. 586 (N.D.Ill. 1996) and Brem v. DeCarlo, Lyon, Hearn & Pazourek, P.A., 162 F.R.D. 94 (D.Md. 1995). However, as neither case is apposite neither was discussed by the court. In Freeman, the sole claim to which the requested discovery related was a state wrongful death claim. Thus, the rule of decision being state law, the court's discussion of the possible existence of a peer review privilege under federal common law is dicta. Similarly, in Brem, the only claim in that case to which the deposition request at issue related was a state defamation claim, not the discrimination claims upon which federal removal jurisdiction was based. Brem, supra, at 96, 101. Hence, as the Brem court was required, pursuant to Fed.R.Evid. 501, to apply the Maryland peer review committee privilege statute, it did not determine the existence of a parallel privilege under federal common law. Additionally, Freeman does not attempt to distinguish University of Pennsylvania's rejection of a federal peer review privilege and Brem fails to even mention the decision. Thus, neither case supports the objection that the court failed to consider relevant case law upholding the existence of a medical peer review privilege following University of Pennsylvania.

The hospitals also argue that the court ignored applicable Second Circuit law. Sisters Memorandum at 9. Specifically, they rely on United States v. One Parcel of Property at 31-33 York Street, 930 F.2d 139 (2d Cir. 1991), a forfeiture case in which a state law barring disclosure of juvenile offender records was at issue. In finding that the state's interest in maintaining the confidentiality of arrest records was outweighed by the federal interest in "presenting relevant information to the trier of fact," 930 F.2d at 141, the court stated where the asserted privilege is one of state law, under Fed.R.Evid. 501, "as a matter of comity federal courts accord deference to state-created privileges." 930 F.2d at 140. Hospitals interpret this statement to require the court to apply the asserted New York medical peer review privilege statutes in this case. Sisters Memorandum at 11. However, the statement in One Parcel of Property does not bear the meaning hospitals attribute to it as the court gave no deference to the state statutory privilege rejecting it in favor of the general federal interest in enforcing forfeitures against illegal drug traffickers. 930 F.2d at 141. Thus, One Parcel of Property is also inapposite to this case.*fn1 Based on the Supreme court's explicit rejection of a peer review privilege in University of Pennsylvania and Congress' failure to enact a peer review privilege in the HCQIA, this court found no reason to "defer" to the New York statutory privileges asserted here. D & O at 12-13.

Finally, the hospitals maintain the court failed to give weight to the policy considerations underlying the peer review privilege relying upon statements in Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970), aff'd without opinion, 479 F.2d 920 (D.C.Cir. 1973)*fn2; Freeman, supra, at 589; and Gillman v. United States, 53 F.R.D. 316, 318 (S.D.N.Y. 1971). Sisters Hospital Memorandum at 10. Specifically, the hospitals assert, id. at 11, that the statements in these cases asserting that effective peer review of the care provided by physicians cannot occur in the absence of a privilege negate this court's finding the hospitals had failed to "provide any reason to believe some physicians would not provide candid appraisals of their peers absent the asserted privilege." D & O at 13. In so stating, the court relied on the Supreme Court's ...

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