Eleventh Circuit Joins Growing List Of Federal Courts To Reject The Medical Staff Peer Review Privilege In Federal Discrimination Cases

On June 12, 2007, in the case of Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007), the Eleventh Circuit Court of Appeals held that the medical staff peer review privilege does not apply in federal civil rights cases. As it becomes increasingly clear that federal courts will not recognize this privilege in discrimination cases, healthcare providers should be mindful that peer review records, which were once thought to be held under the strictest confidence, may now be subject to discovery and disclosure in future litigation.

The Medical Staff Peer Review Privilege

All 50 states and the District of Columbia have statutes that protect from discovery and disclosure any records containing reviews of medical professionals conducted by their peers. In enacting these statutes, state legislatures recognized the importance of encouraging physicians to be candid and vigorous when called upon to evaluate their peers, without the fear that their evaluations could later be used for other purposes such as a medical malpractice lawsuit. Without such a privilege, an important oversight process in the medical profession, medical care itself could suffer.

Adkins v. Christie - The Eleventh Circuit's Analysis

Dr. Russell Adkins filed suit against Houston Medical Center ("HMC") and several HMC physicians alleging that HMC and the individual physicians discriminated against him based on his race in HMC's peer review and disciplinary process. The peer review process was used to investigate Dr. Adkin's medical practice and eventually led to his suspension and termination from HMC.

During discovery, Dr. Adkins' attorneys requested documents relating to the peer review of all physicians at HMC during the time he was employed. HMC refused to provide this information arguing that it was protected from disclosure by Georgia's medical peer review privilege. The Georgia statute at issue states that "[t]he proceedings and records of medical review committees shall not be subject to discovery or introduction into evidence in any civil action against a provider of health services arising out of the matters which are the subject of evaluation and review by such committee." O.C.G.A. 31-7-143. The Georgia Supreme Court has interpreted this statute as placing "an absolute embargo upon the discovery and use of all proceedings, records, findings, and recommendations of peer review groups and medical review committees in litigation." Emory Clinic v. Houston, 258 Ga. 434...