Miles Zaremski

[email protected]

On Dec. 12, 2007, Sen. Judd Gregg (R-N.H.) offered an amendment to a major farm-aid bill in the Senate, but it had nothing to do with aid to our nation's farmers. Sen. Gregg's amendment was called the “Healthy Mothers and Healthy Babies Rural Access to Care Act.” This bill would have limited exposure to obstetricians and gynecologists who practice in towns of 20,000 people or fewer. One provision in the bill would have capped noneconomic damages—also known as “pain and suffering”—at $250,000 for a physician and $250,000 for a health care institution. The amendment was voted down 53–41.

On Dec. 27, the Ohio Supreme Court upheld a law limiting the amount of pain and suffering damages a person can collect because of a defective product. The case involved Cincinnati property manager Melisa Arbino, who claimed that the Ortho Evra Birth Control Patch made by Johnson & Johnson caused permanent physical damage and jeopardized her fertility. According to press reports, Ohio Supreme Court Chief Justice Thomas J. Moyer said the Ohio law did not violate an injured person's right under state law to trial by jury or to a remedy for their injuries. One of the law's provisions caps awards at either $250,000 or three times the amount of economic damages, whichever is greater, up to an overall limit of $350,000. There is an exception to the cap if the person suffers permanent disability or loss of a limb or bodily organ.

On Nov. 13, 2007, trial judge Diane Larsen of the Circuit Court of Cook County (Chicago) ruled as unconstitutional the Illinois statute on capping noneconomic damages (LeBron et al. v. Gottlieb Memorial Hospital et al., No. 2006 L 012109). Because the law containing this cap has a provision that says no part of it can be considered separately from other parts, Illinois' entire medical malpractice statute was ruled unconstitutional. On Dec. 10, 2007, the defendants appealed this decision directly to the Illinois Supreme Court; a decision is expected late this year.

Judge Larsen ruled that a cap on noneconomic damages in medical malpractice cases violates the constitutional principle of separation of powers. She noted that having the Illinois legislature cap noneconomic damages “unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law.” In other words, the legislative branch should not interfere with the judicial branch's ability to award and determine damages; to do so is to encroach upon the powers and authority left to the judicial branch by the state constitution.

These events reflect ongoing efforts to reform medical malpractice law during at least the past 4 decades. Attempts in Congress to legislate caps on damages have been made several times by members on both sides of the aisle, and in both chambers.

All such legislation has failed, and will no doubt fail again if attempted in the future. The reason is simple: Regulating medical malpractice is a state-based function—part of a state's ability to regulate health care—and the federal government is an interloper in this arena.

Most of the action on caps has occurred at the state level. California was one of the first to enact caps with its Medical Injury Compensation Reform Act (MICRA), which became law in 1975 and is still in place. Under MICRA, noneconomic damages are capped at $250,000. Other states have enacted caps either through the state legislatures or by voter referendum, such as occurred in Texas in 2003. The Texas law, like the one in California, also caps noneconomic damages, such as pain and suffering and loss of companionship, at $250,000, although lawyers can still sue for punitive damages.

Despite these legislative successes, other states have seen caps thrown out on various grounds, often for being in violation of a state's constitution. The fact that these caps have been so controversial lends itself to a consideration of the purpose for having caps in the first place.

I have spent 35 years serving as a lawyer representing health care providers, policy makers, and legislators, and also doing research and writing in this subject area. In light of this experience (which did not include any work as a plaintiff's attorney), my conclusion is that the driving force behind capping noneconomic damages is the perceived link between enacting caps and lowering physician malpractice insurance premiums. The theory goes that without a cap, malpractice premiums would continue to rise, forcing some physicians to leave a geographic area and practice elsewhere, or even to retire prematurely.

Research has shown, however, that caps in some states have not had an effect in lowering premiums; premiums have also increased within reason, or have stayed relatively flat, in jurisdictions without any caps. There is also a cyclical element at work: Premiums have increased dramatically, over short periods of time, once every decade since the 1970s.

It is clear that the success of and the need for caps have varied. The question then becomes, has it been prudent for various state legislators to enact such caps, if there has been no uniformity across all jurisdictions over relatively long periods of time in the perceived causal link—in other words, if there has been no real proof that high verdicts and settlements (containing noneconomic damages as a major element) are the reason that physician premiums have increased so dramatically?

Caps have been enacted because of a persuasive method of advocacy known to many as the KISS (“Keep it simple, stupid”) principle. If you want to convince someone (typically, a juror) of a position, keep your point simple and straightforward. Telling legislators that in order to reduce malpractice insurance premiums, noneconomic damages must be capped is an example of KISS at work.

But in reality, increased insurance premiums are a product of complex and interrelated factors, including performance by financial markets, returns on premium dollars invested, and expected profit margins by insurers that invest in the financial markets. It may also be that these companies have a disdain for the legal profession, although it comes at the expense of patient care and those who suffer grievous injuries.

The continuing debate over capping noneconomic damages has yet to be settled, both in state and federal law. This sleeping dog has not found a resting place yet.

Update since the last issue: On Jan. 7, the Supreme Court declined to take the case of Adkins v. Christie, which dealt with confidentiality of peer review. That means that the lower court's ruling against the defendants will stand.

[email protected]

On Dec. 12, 2007, Sen. Judd Gregg (R-N.H.) offered an amendment to a major farm-aid bill in the Senate, but it had nothing to do with aid to our nation's farmers. Sen. Gregg's amendment was called the “Healthy Mothers and Healthy Babies Rural Access to Care Act.” This bill would have limited exposure to obstetricians and gynecologists who practice in towns of 20,000 people or fewer. One provision in the bill would have capped noneconomic damages—also known as “pain and suffering”—at $250,000 for a physician and $250,000 for a health care institution. The amendment was voted down 53–41.

On Dec. 27, the Ohio Supreme Court upheld a law limiting the amount of pain and suffering damages a person can collect because of a defective product. The case involved Cincinnati property manager Melisa Arbino, who claimed that the Ortho Evra Birth Control Patch made by Johnson & Johnson caused permanent physical damage and jeopardized her fertility. According to press reports, Ohio Supreme Court Chief Justice Thomas J. Moyer said the Ohio law did not violate an injured person's right under state law to trial by jury or to a remedy for their injuries. One of the law's provisions caps awards at either $250,000 or three times the amount of economic damages, whichever is greater, up to an overall limit of $350,000. There is an exception to the cap if the person suffers permanent disability or loss of a limb or bodily organ.

On Nov. 13, 2007, trial judge Diane Larsen of the Circuit Court of Cook County (Chicago) ruled as unconstitutional the Illinois statute on capping noneconomic damages (LeBron et al. v. Gottlieb Memorial Hospital et al., No. 2006 L 012109). Because the law containing this cap has a provision that says no part of it can be considered separately from other parts, Illinois' entire medical malpractice statute was ruled unconstitutional. On Dec. 10, 2007, the defendants appealed this decision directly to the Illinois Supreme Court; a decision is expected late this year.

Judge Larsen ruled that a cap on noneconomic damages in medical malpractice cases violates the constitutional principle of separation of powers. She noted that having the Illinois legislature cap noneconomic damages “unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law.” In other words, the legislative branch should not interfere with the judicial branch's ability to award and determine damages; to do so is to encroach upon the powers and authority left to the judicial branch by the state constitution.

These events reflect ongoing efforts to reform medical malpractice law during at least the past 4 decades. Attempts in Congress to legislate caps on damages have been made several times by members on both sides of the aisle, and in both chambers.

All such legislation has failed, and will no doubt fail again if attempted in the future. The reason is simple: Regulating medical malpractice is a state-based function—part of a state's ability to regulate health care—and the federal government is an interloper in this arena.

Most of the action on caps has occurred at the state level. California was one of the first to enact caps with its Medical Injury Compensation Reform Act (MICRA), which became law in 1975 and is still in place. Under MICRA, noneconomic damages are capped at $250,000. Other states have enacted caps either through the state legislatures or by voter referendum, such as occurred in Texas in 2003. The Texas law, like the one in California, also caps noneconomic damages, such as pain and suffering and loss of companionship, at $250,000, although lawyers can still sue for punitive damages.

Despite these legislative successes, other states have seen caps thrown out on various grounds, often for being in violation of a state's constitution. The fact that these caps have been so controversial lends itself to a consideration of the purpose for having caps in the first place.

I have spent 35 years serving as a lawyer representing health care providers, policy makers, and legislators, and also doing research and writing in this subject area. In light of this experience (which did not include any work as a plaintiff's attorney), my conclusion is that the driving force behind capping noneconomic damages is the perceived link between enacting caps and lowering physician malpractice insurance premiums. The theory goes that without a cap, malpractice premiums would continue to rise, forcing some physicians to leave a geographic area and practice elsewhere, or even to retire prematurely.

Research has shown, however, that caps in some states have not had an effect in lowering premiums; premiums have also increased within reason, or have stayed relatively flat, in jurisdictions without any caps. There is also a cyclical element at work: Premiums have increased dramatically, over short periods of time, once every decade since the 1970s.

It is clear that the success of and the need for caps have varied. The question then becomes, has it been prudent for various state legislators to enact such caps, if there has been no uniformity across all jurisdictions over relatively long periods of time in the perceived causal link—in other words, if there has been no real proof that high verdicts and settlements (containing noneconomic damages as a major element) are the reason that physician premiums have increased so dramatically?

Caps have been enacted because of a persuasive method of advocacy known to many as the KISS (“Keep it simple, stupid”) principle. If you want to convince someone (typically, a juror) of a position, keep your point simple and straightforward. Telling legislators that in order to reduce malpractice insurance premiums, noneconomic damages must be capped is an example of KISS at work.

But in reality, increased insurance premiums are a product of complex and interrelated factors, including performance by financial markets, returns on premium dollars invested, and expected profit margins by insurers that invest in the financial markets. It may also be that these companies have a disdain for the legal profession, although it comes at the expense of patient care and those who suffer grievous injuries.

The continuing debate over capping noneconomic damages has yet to be settled, both in state and federal law. This sleeping dog has not found a resting place yet.

Update since the last issue: On Jan. 7, the Supreme Court declined to take the case of Adkins v. Christie, which dealt with confidentiality of peer review. That means that the lower court's ruling against the defendants will stand.

[email protected]

On Dec. 12, 2007, Sen. Judd Gregg (R-N.H.) offered an amendment to a major farm-aid bill in the Senate, but it had nothing to do with aid to our nation's farmers. Sen. Gregg's amendment was called the “Healthy Mothers and Healthy Babies Rural Access to Care Act.” This bill would have limited exposure to obstetricians and gynecologists who practice in towns of 20,000 people or fewer. One provision in the bill would have capped noneconomic damages—also known as “pain and suffering”—at $250,000 for a physician and $250,000 for a health care institution. The amendment was voted down 53–41.

On Dec. 27, the Ohio Supreme Court upheld a law limiting the amount of pain and suffering damages a person can collect because of a defective product. The case involved Cincinnati property manager Melisa Arbino, who claimed that the Ortho Evra Birth Control Patch made by Johnson & Johnson caused permanent physical damage and jeopardized her fertility. According to press reports, Ohio Supreme Court Chief Justice Thomas J. Moyer said the Ohio law did not violate an injured person's right under state law to trial by jury or to a remedy for their injuries. One of the law's provisions caps awards at either $250,000 or three times the amount of economic damages, whichever is greater, up to an overall limit of $350,000. There is an exception to the cap if the person suffers permanent disability or loss of a limb or bodily organ.

On Nov. 13, 2007, trial judge Diane Larsen of the Circuit Court of Cook County (Chicago) ruled as unconstitutional the Illinois statute on capping noneconomic damages (LeBron et al. v. Gottlieb Memorial Hospital et al., No. 2006 L 012109). Because the law containing this cap has a provision that says no part of it can be considered separately from other parts, Illinois' entire medical malpractice statute was ruled unconstitutional. On Dec. 10, 2007, the defendants appealed this decision directly to the Illinois Supreme Court; a decision is expected late this year.

Judge Larsen ruled that a cap on noneconomic damages in medical malpractice cases violates the constitutional principle of separation of powers. She noted that having the Illinois legislature cap noneconomic damages “unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law.” In other words, the legislative branch should not interfere with the judicial branch's ability to award and determine damages; to do so is to encroach upon the powers and authority left to the judicial branch by the state constitution.

These events reflect ongoing efforts to reform medical malpractice law during at least the past 4 decades. Attempts in Congress to legislate caps on damages have been made several times by members on both sides of the aisle, and in both chambers.

All such legislation has failed, and will no doubt fail again if attempted in the future. The reason is simple: Regulating medical malpractice is a state-based function—part of a state's ability to regulate health care—and the federal government is an interloper in this arena.

Most of the action on caps has occurred at the state level. California was one of the first to enact caps with its Medical Injury Compensation Reform Act (MICRA), which became law in 1975 and is still in place. Under MICRA, noneconomic damages are capped at $250,000. Other states have enacted caps either through the state legislatures or by voter referendum, such as occurred in Texas in 2003. The Texas law, like the one in California, also caps noneconomic damages, such as pain and suffering and loss of companionship, at $250,000, although lawyers can still sue for punitive damages.

Despite these legislative successes, other states have seen caps thrown out on various grounds, often for being in violation of a state's constitution. The fact that these caps have been so controversial lends itself to a consideration of the purpose for having caps in the first place.

I have spent 35 years serving as a lawyer representing health care providers, policy makers, and legislators, and also doing research and writing in this subject area. In light of this experience (which did not include any work as a plaintiff's attorney), my conclusion is that the driving force behind capping noneconomic damages is the perceived link between enacting caps and lowering physician malpractice insurance premiums. The theory goes that without a cap, malpractice premiums would continue to rise, forcing some physicians to leave a geographic area and practice elsewhere, or even to retire prematurely.

Research has shown, however, that caps in some states have not had an effect in lowering premiums; premiums have also increased within reason, or have stayed relatively flat, in jurisdictions without any caps. There is also a cyclical element at work: Premiums have increased dramatically, over short periods of time, once every decade since the 1970s.

It is clear that the success of and the need for caps have varied. The question then becomes, has it been prudent for various state legislators to enact such caps, if there has been no uniformity across all jurisdictions over relatively long periods of time in the perceived causal link—in other words, if there has been no real proof that high verdicts and settlements (containing noneconomic damages as a major element) are the reason that physician premiums have increased so dramatically?

Caps have been enacted because of a persuasive method of advocacy known to many as the KISS (“Keep it simple, stupid”) principle. If you want to convince someone (typically, a juror) of a position, keep your point simple and straightforward. Telling legislators that in order to reduce malpractice insurance premiums, noneconomic damages must be capped is an example of KISS at work.

But in reality, increased insurance premiums are a product of complex and interrelated factors, including performance by financial markets, returns on premium dollars invested, and expected profit margins by insurers that invest in the financial markets. It may also be that these companies have a disdain for the legal profession, although it comes at the expense of patient care and those who suffer grievous injuries.

The continuing debate over capping noneconomic damages has yet to be settled, both in state and federal law. This sleeping dog has not found a resting place yet.

Update since the last issue: On Jan. 7, the Supreme Court declined to take the case of Adkins v. Christie, which dealt with confidentiality of peer review. That means that the lower court's ruling against the defendants will stand.

[email protected]

The case of Russell Adkins, M.D. v. Arthur Christie et al. may not sound very exciting on its face, but it could be a significant one for practicing physicians because of its potential effect on peer review.

Dr. Adkins, an African American, brought suit in federal court against the hospital where he had been practicing, as well as against its administrator and its staff physicians (all located in Georgia) for allegedly discriminating against him by summarily suspending his privileges. Dr. Adkins also alleges his privileges were not renewed because of his race, and that he was not accorded due process.

During discovery, Dr. Adkins sought documents from the hospital's peer review committee relating to peer review of all physicians at the hospital during the 7 years that he was a member of the medical staff. The defendants objected, arguing that the information that Dr. Adkins sought was privileged under Georgia's peer review statute which states: “[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 professional health services arising out of the matters which are the subject of evaluation and review by such committee.”

Although the federal trial judge found the privilege applicable to federal civil rights actions, he disagreed with what the defendants argued, and ordered them to produce descriptions of events giving rise to peer review without producing the documents themselves.

When the defendants asked that the case be dismissed, the court inspected the documents at issue, but went ahead and dismissed the case. Dr. Adkins appealed to the 11th Circuit Court of Appeals in Atlanta, asserting the trial court improperly recognized the peer review privilege.

The appeals court decided that the privilege protecting peer review documents would not be recognized in Dr. Adkins' civil rights lawsuit, and reversed the decision of the federal court below. After a legal analysis, the court ruled on Oct. 22 that in federal law, privileges such as the one protecting peer review information from disclosure are not favored absent extraordinary circumstances, since privileges can well cloud the truth-seeking process.

In a discrimination case such as this one, protecting peer review information does not trump the right to seek the truth for an asserted violation of a person's—in this case, a physician's—civil rights. At the same time, the U.S. Supreme Court has recognized the psychotherapist-patient privilege in one of its own decisions.

The conundrum raised by the 11th Circuit's opinion is not in adding to the “mushiness” of federal decisions addressing when and under what circumstances a peer review privilege should be recognized, but in its failure to recognize how the peer review statute will be applied and interpreted by a state judge considering the very same privilege in light of the same or a quite similar case—for example, civil rights or antitrust cases—that was filed understate law.

Regulating health care is state based. Congress has never enacted a federal peer review statute and has never announced its intention to do so.

Moreover, peer review statutes were created to further health care within a particular state by enabling physicians in that state to freely and candidly discuss and review medical care within their institutions and hospitals—thus policing themselves. Consequently, since health care is state based and since regulation of that care is state based, then the interpretation and application of the privilege against disclosure of peer review materials by a federal court should be gleaned from how a state court would use the privilege in the same or similar circumstances.

If the particular state peer review statute does not allow for any disclosure, then a federal court should do the same analysis; if a state court “balances” various factors, for example, to first look at the peer review information before allowing it to be disclosed or limiting the time period when the documents were created, then, likewise, a federal court should arrive at the same result. In the end, health care does not change simply because an aggrieved party, like Dr. Adkins, sues in a federal court, and not in a state court.

After the appeals court ruled against them, the defendants in the Adkins case asked the U.S. Supreme Court to take on the case; on January 7, the court said it would not do so. Had it accepted the Adkins case, the Supreme Court would have had a real opportunity to instruct its lower federal courts that when confronting the protections afforded by a state peer review statute, they should look to how the state statute is interpreted by the state courts in which the federal court sits. With this approach, there would be uniformity in application by all courts throughout both the federal and state systems of jurisprudence.

As it now stands, physicians should continue to note that if they serve on peer review committees, they should be guided by the protections provided in their respective state peer review law. A member of such a committee must realize, however, that the information generated by a peer review committee may well not be privileged from disclosure if the request for information arises from a lawsuit in a federal court.

[email protected]

The case of Russell Adkins, M.D. v. Arthur Christie et al. may not sound very exciting on its face, but it could be a significant one for practicing physicians because of its potential effect on peer review.

Dr. Adkins, an African American, brought suit in federal court against the hospital where he had been practicing, as well as against its administrator and its staff physicians (all located in Georgia) for allegedly discriminating against him by summarily suspending his privileges. Dr. Adkins also alleges his privileges were not renewed because of his race, and that he was not accorded due process.

During discovery, Dr. Adkins sought documents from the hospital's peer review committee relating to peer review of all physicians at the hospital during the 7 years that he was a member of the medical staff. The defendants objected, arguing that the information that Dr. Adkins sought was privileged under Georgia's peer review statute which states: “[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 professional health services arising out of the matters which are the subject of evaluation and review by such committee.”

Although the federal trial judge found the privilege applicable to federal civil rights actions, he disagreed with what the defendants argued, and ordered them to produce descriptions of events giving rise to peer review without producing the documents themselves.

When the defendants asked that the case be dismissed, the court inspected the documents at issue, but went ahead and dismissed the case. Dr. Adkins appealed to the 11th Circuit Court of Appeals in Atlanta, asserting the trial court improperly recognized the peer review privilege.

The appeals court decided that the privilege protecting peer review documents would not be recognized in Dr. Adkins' civil rights lawsuit, and reversed the decision of the federal court below. After a legal analysis, the court ruled on Oct. 22 that in federal law, privileges such as the one protecting peer review information from disclosure are not favored absent extraordinary circumstances, since privileges can well cloud the truth-seeking process.

In a discrimination case such as this one, protecting peer review information does not trump the right to seek the truth for an asserted violation of a person's—in this case, a physician's—civil rights. At the same time, the U.S. Supreme Court has recognized the psychotherapist-patient privilege in one of its own decisions.

The conundrum raised by the 11th Circuit's opinion is not in adding to the “mushiness” of federal decisions addressing when and under what circumstances a peer review privilege should be recognized, but in its failure to recognize how the peer review statute will be applied and interpreted by a state judge considering the very same privilege in light of the same or a quite similar case—for example, civil rights or antitrust cases—that was filed understate law.

Regulating health care is state based. Congress has never enacted a federal peer review statute and has never announced its intention to do so.

Moreover, peer review statutes were created to further health care within a particular state by enabling physicians in that state to freely and candidly discuss and review medical care within their institutions and hospitals—thus policing themselves. Consequently, since health care is state based and since regulation of that care is state based, then the interpretation and application of the privilege against disclosure of peer review materials by a federal court should be gleaned from how a state court would use the privilege in the same or similar circumstances.

If the particular state peer review statute does not allow for any disclosure, then a federal court should do the same analysis; if a state court “balances” various factors, for example, to first look at the peer review information before allowing it to be disclosed or limiting the time period when the documents were created, then, likewise, a federal court should arrive at the same result. In the end, health care does not change simply because an aggrieved party, like Dr. Adkins, sues in a federal court, and not in a state court.

After the appeals court ruled against them, the defendants in the Adkins case asked the U.S. Supreme Court to take on the case; on January 7, the court said it would not do so. Had it accepted the Adkins case, the Supreme Court would have had a real opportunity to instruct its lower federal courts that when confronting the protections afforded by a state peer review statute, they should look to how the state statute is interpreted by the state courts in which the federal court sits. With this approach, there would be uniformity in application by all courts throughout both the federal and state systems of jurisprudence.

As it now stands, physicians should continue to note that if they serve on peer review committees, they should be guided by the protections provided in their respective state peer review law. A member of such a committee must realize, however, that the information generated by a peer review committee may well not be privileged from disclosure if the request for information arises from a lawsuit in a federal court.

[email protected]

The case of Russell Adkins, M.D. v. Arthur Christie et al. may not sound very exciting on its face, but it could be a significant one for practicing physicians because of its potential effect on peer review.

Dr. Adkins, an African American, brought suit in federal court against the hospital where he had been practicing, as well as against its administrator and its staff physicians (all located in Georgia) for allegedly discriminating against him by summarily suspending his privileges. Dr. Adkins also alleges his privileges were not renewed because of his race, and that he was not accorded due process.

During discovery, Dr. Adkins sought documents from the hospital's peer review committee relating to peer review of all physicians at the hospital during the 7 years that he was a member of the medical staff. The defendants objected, arguing that the information that Dr. Adkins sought was privileged under Georgia's peer review statute which states: “[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 professional health services arising out of the matters which are the subject of evaluation and review by such committee.”

Although the federal trial judge found the privilege applicable to federal civil rights actions, he disagreed with what the defendants argued, and ordered them to produce descriptions of events giving rise to peer review without producing the documents themselves.

When the defendants asked that the case be dismissed, the court inspected the documents at issue, but went ahead and dismissed the case. Dr. Adkins appealed to the 11th Circuit Court of Appeals in Atlanta, asserting the trial court improperly recognized the peer review privilege.

The appeals court decided that the privilege protecting peer review documents would not be recognized in Dr. Adkins' civil rights lawsuit, and reversed the decision of the federal court below. After a legal analysis, the court ruled on Oct. 22 that in federal law, privileges such as the one protecting peer review information from disclosure are not favored absent extraordinary circumstances, since privileges can well cloud the truth-seeking process.

In a discrimination case such as this one, protecting peer review information does not trump the right to seek the truth for an asserted violation of a person's—in this case, a physician's—civil rights. At the same time, the U.S. Supreme Court has recognized the psychotherapist-patient privilege in one of its own decisions.

The conundrum raised by the 11th Circuit's opinion is not in adding to the “mushiness” of federal decisions addressing when and under what circumstances a peer review privilege should be recognized, but in its failure to recognize how the peer review statute will be applied and interpreted by a state judge considering the very same privilege in light of the same or a quite similar case—for example, civil rights or antitrust cases—that was filed understate law.

Regulating health care is state based. Congress has never enacted a federal peer review statute and has never announced its intention to do so.

Moreover, peer review statutes were created to further health care within a particular state by enabling physicians in that state to freely and candidly discuss and review medical care within their institutions and hospitals—thus policing themselves. Consequently, since health care is state based and since regulation of that care is state based, then the interpretation and application of the privilege against disclosure of peer review materials by a federal court should be gleaned from how a state court would use the privilege in the same or similar circumstances.

If the particular state peer review statute does not allow for any disclosure, then a federal court should do the same analysis; if a state court “balances” various factors, for example, to first look at the peer review information before allowing it to be disclosed or limiting the time period when the documents were created, then, likewise, a federal court should arrive at the same result. In the end, health care does not change simply because an aggrieved party, like Dr. Adkins, sues in a federal court, and not in a state court.

After the appeals court ruled against them, the defendants in the Adkins case asked the U.S. Supreme Court to take on the case; on January 7, the court said it would not do so. Had it accepted the Adkins case, the Supreme Court would have had a real opportunity to instruct its lower federal courts that when confronting the protections afforded by a state peer review statute, they should look to how the state statute is interpreted by the state courts in which the federal court sits. With this approach, there would be uniformity in application by all courts throughout both the federal and state systems of jurisprudence.

As it now stands, physicians should continue to note that if they serve on peer review committees, they should be guided by the protections provided in their respective state peer review law. A member of such a committee must realize, however, that the information generated by a peer review committee may well not be privileged from disclosure if the request for information arises from a lawsuit in a federal court.