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Confidential physician peer reviews may be disclosed to plaintiffs in federal discrimination and antitrust cases in three federal circuits, even though all 50 states and the District of Columbia recognize a privilege against disclosure of the performance ratings. This growing federal-state divergence will make federal courts more attractive to plaintiffs filing civil rights suits involving doctors, attorneys say. The 11th U.S. Circuit Court of Appeals in a June 12 opinion became the third circuit to refuse to recognize a privilege against discovery of records containing performance reviews of one doctor by peers. Adkins, v. Christie, No. 06-13107. The court joins the 4th and 7th circuits. “The decision takes a very expansive view of discovery at the expense of public policy considerations,” according to Kevin E. Grady, of Alston & Bird in Atlanta, who wrote an amicus brief supporting the privilege on behalf of the Georgia Hospital Association. “This is not a happy day for the medical community,” he said. Opening the way? Judge Charles R. Wilson noted that, while states have a public-policy concern of encouraging frank, open critiques by doctors of their colleagues, the federal interest in exposing invidious discrimination is different and takes precedence. “I clearly think the decision opens the way for plaintiffs to sue in federal court and pursue those types of claims,” said Paul Koster, of Atlanta’s Daley, Koster & LaVallee, attorney for defendants. The plaintiff’s attorney, Althea Buafo, of Buafo & Associates in Macon, Ga., praised the ruling, saying, “It puts the concerns of employment discrimination ahead of the privilege that a lot of hospitals have shielded behind. It has been a shield to prevent getting to the truth in discrimination cases.” Grady warned that the ruling also has implications for antitrust actions brought by doctors who claim they have been victims of efforts to squeeze them out of practice areas or certain hospitals. “Since the 1980s, some physicians who are denied medical privileges at hospitals have claimed it was done on an anticompetitive basis,” he said. A recent Supreme Court decision and legislation has limited antitrust claims but cases still arise, he said. Grady suggested access to peer reviews would put added pressure on hospitals facing antitrust claims by eliminating the long-held expectations of confidentiality of peer critiques. Access to the information could expose not just dirty laundry about other doctors, but also potentially anticompetitive reasons for excluding a doctor from a hospital. Doctor sought reviews Dr. Russell E. Adkins, an African-American, sued the Houston Medical Center in Georgia for race discrimination after the hospital surgery department suspended and ultimately fired him. The hospital alleged he mishandled a surgery, that his level of care was inadequate and that medical charts were filed late. Adkins countered that the hospital mishandled care of one of his patients, then used it as a pretext to punish him and meted out disproportionately harsh punishment compared with other physicians. Adkins sued hospital administrator Arthur Christie and members of the medical executive committee, which conducts peer reviews. He sought peer reviews of all doctors at the hospital for seven years to compare with his own treatment but was refused. His case was dismissed by the district judge. Grady warned that the appeals court’s failure to recognize the privilege “would chill supervising physicians, making them less candid in their performance evaluations of staff physicians for fear that their assessments and statements . . . might be used to generate medical malpractice litigation.” But the panel said that the medical peer review process “does not warrant the extraordinary protection of an evidentiary privilege in federal civil rights cases.” Eradication of discrimination outweighs the interest in promoting candor, Wilson wrote. He pointed out that judges still have the ability to keep materials confidential, without a privilege. Adkins has the right to place his case in the context of larger disciplinary processes of the hospital and thus avoid an excessive burden on his ability to pursue his claim. The 4th Circuit refused to extend the privilege to peer reviews in a similar employment discrimination case, Viramani v. Novant Health, Inc., 259 F.3d 284 (2001), and the 7th has long refused to recognize it stemming from an antitrust action, Memorial Hospital v. Shadur, 664 F.2d 1058 (1981).

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