The Fourth Circuit Court of Appeals, the federal appellate court with jurisdiction for Maryland, Virginia, West Virginia, and North and South Carolina, has ruled, in Virmani v. Novant Health Inc., that a North Carolina hospital must turn over twenty years of peer review records to a physician suing the hospital for discrimination. The court held that the need to obtain probative evidence in an action for discrimination outweighs the interests that would be furthered by recognizing an absolute privilege for medical peer review materials.
A. The Facts The hospital had suspended the physician's staff membership and clinical privileges after a lengthy review of a case in which the physician, an obstetrician-gynecologist, had punctured a patient's iliac artery during a laparoscopic procedure. The physician alleged that such a puncture was a known possible complication of the procedure, and claimed that the termination of his privileges was, in fact, due to his race and national origin. The physician was born in India, came to the United States in the 1970s, and attended medical school in New Jersey in the 1980s. Specifically, the physician alleged that the hospital treated non-Indian physicians differently. He asserted that non-Indian physicians had committed more serious errors at the hospital, but they were not disciplined as severely. During discovery, to prove his allegation, the physician sought to obtain, among other things, all peer review records related to all reviews of physicians for any reason during the twenty years preceding his request. .
B. The Issue The hospital argued that, if peer review documents were not privileged, physicians would be reluctant to serve on peer review committees or, if they did serve, they would be less candid in their evaluations. The Fourth Circuit framed the issue as whether the interest in promoting candor in medical peer review proceedings outweighs the need for probative evidence in a discrimination case.
C. The Decision The Fourth Circuit was guided in its decision by a 1990 Supreme Court case (University of Pennsylvania v. EEOC) in which a professor claimed that she was denied tenure because of racial and sexual discrimination. In that case, the 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 universities." The Supreme Court declined to create such a privilege for universities, because the harm associated with discrimination outweighed the harm that would ensue from the disclosure of peer review materials. The Supreme Court also found the peer review materials to be especially relevant, because the discrimination claim arose from the peer review proceedings themselves. In Virmani, the Fourth Circuit acknowledged that the privilege sought by the hospital would serve important interests. However, the court found it more persuasive, as in the Pennsylvania case, that the evidence the physician sought was crucial to his attempt to establish that he had been the victim of disparate treatment based on race and ethnicity. The hospital pointed out that all fifty states and the District of Columbia have recognized some form of medical peer review privilege. However, the Fourth Circuit stated that the privileged status of peer review materials, in at least some states, appears to have been based on a policy decision that promoting candor among medical personnel outweighs providing access to evidence in medical malpractice actions. In contrast to a discrimination case in which the claim arises out of the peer review proceedings, a claim in a medical malpractice case arises from actions that occurred independently of the review proceedings. The Fourth Circuit also found telling that Congress, when enacting the Health Care Quality Improvement Act of 1986 (HCQIA), provided for immunity from liability in damages to participants in the activities of professional review bodies meeting specified standards; however, Congress created an express exception to the immunity in the case of civil rights actions. Thus, the Fourth Circuit found that, to the extent Congress had considered the competing interests, it had not elevated the interest to encourage peer review over the interest to combat discrimination. The bottom line is that the Fourth Circuit determined that Dr. Virmani needed to review proceedings involving similarly situated physicians to prove his case. Moreover, the court concluded that facilitating the eradication of discrimination, by providing perhaps the only evidence that could establish its occurrence, outweighs promoting candor in the medical peer review process.