Law & Medicine

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Peer review, which plays an important role in reviewing medical care in hospital settings, sometimes is abused and warped to a degree never envisioned by legislators.

Two examples now moving through state legal systems warrant attention. They are Joseph Kamelgard, M.D. v. the American College of Surgeons (Circuit Court of Cook County, Ill.), and Charles Yancey, M.D. v. American Academy of Ophthalmology, et al. (4th Judicial District, Hennepin County, Minn.).

In the Kamelgard case, Dr. Kamelgard, a well-regarded bariatric surgeon from New Jersey, testified for the first time as a medical expert in a malpractice lawsuit in federal court in Brooklyn, N.Y. The plaintiff, a New York resident, was cared for at a Staten Island hospital. The defendant was a physician who, according to court records, had been named previously in professional liability cases. The jury decided in favor of the defendant physician.

The defendant physician never challenged Dr. Kamelgard's testimony. But the defendant later filed a complaint with the American College of Surgeons (ACS), accusing Dr. Kamelgard of allegedly testifying falsely regarding relevant standards of care. The ACS decided to charge Dr. Kamelgard with violating its rules, but shortly before a scheduled hearing, lawyers intervened on Dr. Kamelgard's behalf. The ACS later dropped the case; no explanation was ever given.

Despite Dr. Kamelgard's requests, the ACS refused to provide him with a copy of the complaint against him, the identity of his accuser, or even the names of the three members of the ACS deemed qualified as bariatric surgeons to review the complaint for the college.

Dr. Kamelgard filed a petition seeking the identities of these three members. The ACS asserted that what was being sought was protected by the state's Medical Studies Act (MSA), its peer review statute.

According to court filings, the ACS admitted that no practice of medicine occurred in Illinois, that testifying equates to the practice of medicine, and that by testifying there Dr. Kamelgard practiced medicine in New York (though New York's statute defining medical practice does not include testifying). But even though he was not licensed in Illinois and had no connection to the state except belonging to the ACS headquartered there, the ACS wrote that any physician who becomes a member agrees to be bound by Illinois law. The ACS, which has over 74,000 members worldwide, suggests by this case that Illinois law governs its conduct.

In the Minnesota case, Dr. Yancey sued a Dr. Weis, and his expert, a Dr. Hardten, for defamation as a result of their filing an ethics complaint against him with the American Academy of Ophthalmology (AAO). At the time the ethics charge was filed, Dr. Yancey was the expert medical witness for the plaintiff in a malpractice case in which Dr. Weis was a defendant. (As with Dr. Kamelgard, this was the first time that Dr. Yancey had ever testified as a medical expert.) Dr. Yancey also asserted that the AAO violated its own rules when it handled the complaint against him, including not keeping the matter confidential.

After a jury returned a verdict for $3 million in favor of the plaintiff, the case was going to be retried on damages with Dr. Yancey again offering testimony. But a day before this was to occur, the AAO served on him the ethics charge Dr. Weis and Dr. Hardten had filed.

According to his lawyer, Dr. Yancey claimed the ethics charge was an attempt to force him to alter his testimony, and to chill his ability to testify in other, subsequent cases that may have come his way. The defendants moved to dismiss Dr. Yancey's complaint and, in the alternative, for the summary judgment.

In the Kamelgard case, which is pending in Illinois but now on appeal, it remains to be seen whether an Illinois court will opine on how the ACS believes the Illinois statute should be used. The Yancey case is also still pending.

State peer review statutes were enacted to maintain and improve health care by keeping the products of a peer review committee privileged from discovery. (The exception to this is when certain cases are litigated in federal court—see my column “A Matter of Privilege,” Jan. 15, 2008, p. 34.)

The Yancey and Kamelgard cases highlight attempts to redefine peer review statutes to include judging expert testimony within the practice of medicine. Such statutes were also not intended to apply solely because an organization is headquartered in a particular state without any health care rendered there, or to chill an expert from further testifying during the course of a legal proceeding.

These cases also show that professional medical organizations sometimes seek to muzzle health care providers when their testimony is inappropriate in the eyes of such organizations. This trend may be influenced in part by a resolution adopted years ago by the American Medical Association declaring that testifying is considered the practice of medicine.

Granted, some physicians don't belong in a courtroom offering expert testimony. However, the Kamelgard and Yancey cases illustrate the Damoclean swords that professional societies may think they can wield in order to prevent physicians from offering legitimate expert medical testimony. After all, giving expert opinion is not rendering patient care, and thus is not generally considered the practice of medicine under state law.

If you are a physician wishing to consult or testify, don't be dissuaded from doing so—provided that you review all medical records properly and thoroughly, you are well credentialed, and you are familiar with all applicable medical standards by way of background, experience, and training. In addition, consult not only with your own organizations as to their standards and policies on testifying, but also ask the lawyer who retains you what your state law requires of experts who testify in legal cases.

[email protected]

Peer review, which plays an important role in reviewing medical care in hospital settings, sometimes is abused and warped to a degree never envisioned by legislators.

Two examples now moving through state legal systems warrant attention. They are Joseph Kamelgard, M.D. v. the American College of Surgeons (Circuit Court of Cook County, Ill.), and Charles Yancey, M.D. v. American Academy of Ophthalmology, et al. (4th Judicial District, Hennepin County, Minn.).

In the Kamelgard case, Dr. Kamelgard, a well-regarded bariatric surgeon from New Jersey, testified for the first time as a medical expert in a malpractice lawsuit in federal court in Brooklyn, N.Y. The plaintiff, a New York resident, was cared for at a Staten Island hospital. The defendant was a physician who, according to court records, had been named previously in professional liability cases. The jury decided in favor of the defendant physician.

The defendant physician never challenged Dr. Kamelgard's testimony. But the defendant later filed a complaint with the American College of Surgeons (ACS), accusing Dr. Kamelgard of allegedly testifying falsely regarding relevant standards of care. The ACS decided to charge Dr. Kamelgard with violating its rules, but shortly before a scheduled hearing, lawyers intervened on Dr. Kamelgard's behalf. The ACS later dropped the case; no explanation was ever given.

Despite Dr. Kamelgard's requests, the ACS refused to provide him with a copy of the complaint against him, the identity of his accuser, or even the names of the three members of the ACS deemed qualified as bariatric surgeons to review the complaint for the college.

Dr. Kamelgard filed a petition seeking the identities of these three members. The ACS asserted that what was being sought was protected by the state's Medical Studies Act (MSA), its peer review statute.

According to court filings, the ACS admitted that no practice of medicine occurred in Illinois, that testifying equates to the practice of medicine, and that by testifying there Dr. Kamelgard practiced medicine in New York (though New York's statute defining medical practice does not include testifying). But even though he was not licensed in Illinois and had no connection to the state except belonging to the ACS headquartered there, the ACS wrote that any physician who becomes a member agrees to be bound by Illinois law. The ACS, which has over 74,000 members worldwide, suggests by this case that Illinois law governs its conduct.

In the Minnesota case, Dr. Yancey sued a Dr. Weis, and his expert, a Dr. Hardten, for defamation as a result of their filing an ethics complaint against him with the American Academy of Ophthalmology (AAO). At the time the ethics charge was filed, Dr. Yancey was the expert medical witness for the plaintiff in a malpractice case in which Dr. Weis was a defendant. (As with Dr. Kamelgard, this was the first time that Dr. Yancey had ever testified as a medical expert.) Dr. Yancey also asserted that the AAO violated its own rules when it handled the complaint against him, including not keeping the matter confidential.

After a jury returned a verdict for $3 million in favor of the plaintiff, the case was going to be retried on damages with Dr. Yancey again offering testimony. But a day before this was to occur, the AAO served on him the ethics charge Dr. Weis and Dr. Hardten had filed.

According to his lawyer, Dr. Yancey claimed the ethics charge was an attempt to force him to alter his testimony, and to chill his ability to testify in other, subsequent cases that may have come his way. The defendants moved to dismiss Dr. Yancey's complaint and, in the alternative, for the summary judgment.

In the Kamelgard case, which is pending in Illinois but now on appeal, it remains to be seen whether an Illinois court will opine on how the ACS believes the Illinois statute should be used. The Yancey case is also still pending.

State peer review statutes were enacted to maintain and improve health care by keeping the products of a peer review committee privileged from discovery. (The exception to this is when certain cases are litigated in federal court—see my column “A Matter of Privilege,” Jan. 15, 2008, p. 34.)

The Yancey and Kamelgard cases highlight attempts to redefine peer review statutes to include judging expert testimony within the practice of medicine. Such statutes were also not intended to apply solely because an organization is headquartered in a particular state without any health care rendered there, or to chill an expert from further testifying during the course of a legal proceeding.

These cases also show that professional medical organizations sometimes seek to muzzle health care providers when their testimony is inappropriate in the eyes of such organizations. This trend may be influenced in part by a resolution adopted years ago by the American Medical Association declaring that testifying is considered the practice of medicine.

Granted, some physicians don't belong in a courtroom offering expert testimony. However, the Kamelgard and Yancey cases illustrate the Damoclean swords that professional societies may think they can wield in order to prevent physicians from offering legitimate expert medical testimony. After all, giving expert opinion is not rendering patient care, and thus is not generally considered the practice of medicine under state law.

If you are a physician wishing to consult or testify, don't be dissuaded from doing so—provided that you review all medical records properly and thoroughly, you are well credentialed, and you are familiar with all applicable medical standards by way of background, experience, and training. In addition, consult not only with your own organizations as to their standards and policies on testifying, but also ask the lawyer who retains you what your state law requires of experts who testify in legal cases.

[email protected]

Peer review, which plays an important role in reviewing medical care in hospital settings, sometimes is abused and warped to a degree never envisioned by legislators.

Two examples now moving through state legal systems warrant attention. They are Joseph Kamelgard, M.D. v. the American College of Surgeons (Circuit Court of Cook County, Ill.), and Charles Yancey, M.D. v. American Academy of Ophthalmology, et al. (4th Judicial District, Hennepin County, Minn.).

In the Kamelgard case, Dr. Kamelgard, a well-regarded bariatric surgeon from New Jersey, testified for the first time as a medical expert in a malpractice lawsuit in federal court in Brooklyn, N.Y. The plaintiff, a New York resident, was cared for at a Staten Island hospital. The defendant was a physician who, according to court records, had been named previously in professional liability cases. The jury decided in favor of the defendant physician.

The defendant physician never challenged Dr. Kamelgard's testimony. But the defendant later filed a complaint with the American College of Surgeons (ACS), accusing Dr. Kamelgard of allegedly testifying falsely regarding relevant standards of care. The ACS decided to charge Dr. Kamelgard with violating its rules, but shortly before a scheduled hearing, lawyers intervened on Dr. Kamelgard's behalf. The ACS later dropped the case; no explanation was ever given.

Despite Dr. Kamelgard's requests, the ACS refused to provide him with a copy of the complaint against him, the identity of his accuser, or even the names of the three members of the ACS deemed qualified as bariatric surgeons to review the complaint for the college.

Dr. Kamelgard filed a petition seeking the identities of these three members. The ACS asserted that what was being sought was protected by the state's Medical Studies Act (MSA), its peer review statute.

According to court filings, the ACS admitted that no practice of medicine occurred in Illinois, that testifying equates to the practice of medicine, and that by testifying there Dr. Kamelgard practiced medicine in New York (though New York's statute defining medical practice does not include testifying). But even though he was not licensed in Illinois and had no connection to the state except belonging to the ACS headquartered there, the ACS wrote that any physician who becomes a member agrees to be bound by Illinois law. The ACS, which has over 74,000 members worldwide, suggests by this case that Illinois law governs its conduct.

In the Minnesota case, Dr. Yancey sued a Dr. Weis, and his expert, a Dr. Hardten, for defamation as a result of their filing an ethics complaint against him with the American Academy of Ophthalmology (AAO). At the time the ethics charge was filed, Dr. Yancey was the expert medical witness for the plaintiff in a malpractice case in which Dr. Weis was a defendant. (As with Dr. Kamelgard, this was the first time that Dr. Yancey had ever testified as a medical expert.) Dr. Yancey also asserted that the AAO violated its own rules when it handled the complaint against him, including not keeping the matter confidential.

After a jury returned a verdict for $3 million in favor of the plaintiff, the case was going to be retried on damages with Dr. Yancey again offering testimony. But a day before this was to occur, the AAO served on him the ethics charge Dr. Weis and Dr. Hardten had filed.

According to his lawyer, Dr. Yancey claimed the ethics charge was an attempt to force him to alter his testimony, and to chill his ability to testify in other, subsequent cases that may have come his way. The defendants moved to dismiss Dr. Yancey's complaint and, in the alternative, for the summary judgment.

In the Kamelgard case, which is pending in Illinois but now on appeal, it remains to be seen whether an Illinois court will opine on how the ACS believes the Illinois statute should be used. The Yancey case is also still pending.

State peer review statutes were enacted to maintain and improve health care by keeping the products of a peer review committee privileged from discovery. (The exception to this is when certain cases are litigated in federal court—see my column “A Matter of Privilege,” Jan. 15, 2008, p. 34.)

The Yancey and Kamelgard cases highlight attempts to redefine peer review statutes to include judging expert testimony within the practice of medicine. Such statutes were also not intended to apply solely because an organization is headquartered in a particular state without any health care rendered there, or to chill an expert from further testifying during the course of a legal proceeding.

These cases also show that professional medical organizations sometimes seek to muzzle health care providers when their testimony is inappropriate in the eyes of such organizations. This trend may be influenced in part by a resolution adopted years ago by the American Medical Association declaring that testifying is considered the practice of medicine.

Granted, some physicians don't belong in a courtroom offering expert testimony. However, the Kamelgard and Yancey cases illustrate the Damoclean swords that professional societies may think they can wield in order to prevent physicians from offering legitimate expert medical testimony. After all, giving expert opinion is not rendering patient care, and thus is not generally considered the practice of medicine under state law.

If you are a physician wishing to consult or testify, don't be dissuaded from doing so—provided that you review all medical records properly and thoroughly, you are well credentialed, and you are familiar with all applicable medical standards by way of background, experience, and training. In addition, consult not only with your own organizations as to their standards and policies on testifying, but also ask the lawyer who retains you what your state law requires of experts who testify in legal cases.

[email protected]

Can a managed care enrollee sue his plan if he is injured because of what he claims was the result of poor care and treatment by a plan physician? If he dies, can his estate sue the plan for damages?

Before 2004, the answers were uncertain. The legal cases that had been decided were definitely a mixed bag, depending upon whether the assertions against the managed care plan were found to involve strictly patient care, administrative decisions, or both.

Strict patient care would fall under state law governing medical negligence cases. If the allegations were solely administrative, the case would come under a federal statute known as the Employee Retirement Income Security Act, or ERISA.

ERISA was originally intended by Congress to govern the rights of pension plan beneficiaries. But legal cases morphed this legislation into protection for ERISA health plans against state-filed lawsuits based on medical malpractice.

When allegations involved both patient care and administrative decisions, some cases were not preempted by ERISA while others were—it depended on how the court interpreted what the injured party asserted. If the court decided that the lawsuit fell under ERISA, that party would be entitled only to the cost of the denied benefit (generally just the cost of the treatment or procedure in question). If ERISA did not preempt the lawsuit (or if the health plan was not governed by ERISA), the enrollee would be entitled to all remedies allowed under state law.

The landscape for these types of decisions changed in 2004, when the Supreme Court decided two cases—Aetna Health Inc. v. Davila and Cigna Corp. v. Calad—in which the patient sued for wrongful denial of coverage.

In the Calad case, Ruby Calad's physician recommended an extended hospital stay after Ms. Calad had a surgical procedure. The managed care plan, through its discharge nurse, thought the extension was unnecessary, and Ms. Calad was discharged from the hospital. Once home, she experienced postsurgical complications that required follow-up care.

In the Davila case, Juan Davila had various ailments, including diabetes, gastric ulcer disease, and arthritis. He was insured through Aetna's managed care plan. His physician, who was not in Aetna's network, recommended Vioxx (rofecoxib) for the treatment of his arthritis.

However, before allowing the use of Vioxx, Aetna required that Mr. Davila try two other medications, both less expensive than Vioxx. While on those “preferred” drugs, he experienced bleeding ulcers, internal bleeding, and a near heart attack. Because of the additional gastric impairment, he was no longer able to take medication absorbed through his stomach.

Both lawsuits eventually made their way to the Supreme Court, which decided that the lawsuits fell under ERISA and that both concerned benefits (coverage) promised to the plaintiffs. The suits were not interpreted as asserting inappropriate medical care and treatment. Therefore, the plaintiffs could seek only the benefits promised but not delivered and no other damages.

Justice Ruth Bader Ginsburg, citing the words of an appeals court judge in another case, said, “I also join 'the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime.'” That is to say, ERISA has been interpreted to provide protections to managed care plans that were never intended.

This decision means that if a physician is named in a lawsuit together with a managed care plan, and the suit falls under the ERISA statute, the odds are great that the only exposure to both parties will be the cost of the benefit denied.

The physician might still be sued separately. But unless and until Congress revisits the ERISA statute, physicians might find that being part of an ERISA plan isn't such a bad position to be in.

[email protected]

Can a managed care enrollee sue his plan if he is injured because of what he claims was the result of poor care and treatment by a plan physician? If he dies, can his estate sue the plan for damages?

Before 2004, the answers were uncertain. The legal cases that had been decided were definitely a mixed bag, depending upon whether the assertions against the managed care plan were found to involve strictly patient care, administrative decisions, or both.

Strict patient care would fall under state law governing medical negligence cases. If the allegations were solely administrative, the case would come under a federal statute known as the Employee Retirement Income Security Act, or ERISA.

ERISA was originally intended by Congress to govern the rights of pension plan beneficiaries. But legal cases morphed this legislation into protection for ERISA health plans against state-filed lawsuits based on medical malpractice.

When allegations involved both patient care and administrative decisions, some cases were not preempted by ERISA while others were—it depended on how the court interpreted what the injured party asserted. If the court decided that the lawsuit fell under ERISA, that party would be entitled only to the cost of the denied benefit (generally just the cost of the treatment or procedure in question). If ERISA did not preempt the lawsuit (or if the health plan was not governed by ERISA), the enrollee would be entitled to all remedies allowed under state law.

The landscape for these types of decisions changed in 2004, when the Supreme Court decided two cases—Aetna Health Inc. v. Davila and Cigna Corp. v. Calad—in which the patient sued for wrongful denial of coverage.

In the Calad case, Ruby Calad's physician recommended an extended hospital stay after Ms. Calad had a surgical procedure. The managed care plan, through its discharge nurse, thought the extension was unnecessary, and Ms. Calad was discharged from the hospital. Once home, she experienced postsurgical complications that required follow-up care.

In the Davila case, Juan Davila had various ailments, including diabetes, gastric ulcer disease, and arthritis. He was insured through Aetna's managed care plan. His physician, who was not in Aetna's network, recommended Vioxx (rofecoxib) for the treatment of his arthritis.

However, before allowing the use of Vioxx, Aetna required that Mr. Davila try two other medications, both less expensive than Vioxx. While on those “preferred” drugs, he experienced bleeding ulcers, internal bleeding, and a near heart attack. Because of the additional gastric impairment, he was no longer able to take medication absorbed through his stomach.

Both lawsuits eventually made their way to the Supreme Court, which decided that the lawsuits fell under ERISA and that both concerned benefits (coverage) promised to the plaintiffs. The suits were not interpreted as asserting inappropriate medical care and treatment. Therefore, the plaintiffs could seek only the benefits promised but not delivered and no other damages.

Justice Ruth Bader Ginsburg, citing the words of an appeals court judge in another case, said, “I also join 'the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime.'” That is to say, ERISA has been interpreted to provide protections to managed care plans that were never intended.

This decision means that if a physician is named in a lawsuit together with a managed care plan, and the suit falls under the ERISA statute, the odds are great that the only exposure to both parties will be the cost of the benefit denied.

The physician might still be sued separately. But unless and until Congress revisits the ERISA statute, physicians might find that being part of an ERISA plan isn't such a bad position to be in.

[email protected]

Can a managed care enrollee sue his plan if he is injured because of what he claims was the result of poor care and treatment by a plan physician? If he dies, can his estate sue the plan for damages?

Before 2004, the answers were uncertain. The legal cases that had been decided were definitely a mixed bag, depending upon whether the assertions against the managed care plan were found to involve strictly patient care, administrative decisions, or both.

Strict patient care would fall under state law governing medical negligence cases. If the allegations were solely administrative, the case would come under a federal statute known as the Employee Retirement Income Security Act, or ERISA.

ERISA was originally intended by Congress to govern the rights of pension plan beneficiaries. But legal cases morphed this legislation into protection for ERISA health plans against state-filed lawsuits based on medical malpractice.

When allegations involved both patient care and administrative decisions, some cases were not preempted by ERISA while others were—it depended on how the court interpreted what the injured party asserted. If the court decided that the lawsuit fell under ERISA, that party would be entitled only to the cost of the denied benefit (generally just the cost of the treatment or procedure in question). If ERISA did not preempt the lawsuit (or if the health plan was not governed by ERISA), the enrollee would be entitled to all remedies allowed under state law.

The landscape for these types of decisions changed in 2004, when the Supreme Court decided two cases—Aetna Health Inc. v. Davila and Cigna Corp. v. Calad—in which the patient sued for wrongful denial of coverage.

In the Calad case, Ruby Calad's physician recommended an extended hospital stay after Ms. Calad had a surgical procedure. The managed care plan, through its discharge nurse, thought the extension was unnecessary, and Ms. Calad was discharged from the hospital. Once home, she experienced postsurgical complications that required follow-up care.

In the Davila case, Juan Davila had various ailments, including diabetes, gastric ulcer disease, and arthritis. He was insured through Aetna's managed care plan. His physician, who was not in Aetna's network, recommended Vioxx (rofecoxib) for the treatment of his arthritis.

However, before allowing the use of Vioxx, Aetna required that Mr. Davila try two other medications, both less expensive than Vioxx. While on those “preferred” drugs, he experienced bleeding ulcers, internal bleeding, and a near heart attack. Because of the additional gastric impairment, he was no longer able to take medication absorbed through his stomach.

Both lawsuits eventually made their way to the Supreme Court, which decided that the lawsuits fell under ERISA and that both concerned benefits (coverage) promised to the plaintiffs. The suits were not interpreted as asserting inappropriate medical care and treatment. Therefore, the plaintiffs could seek only the benefits promised but not delivered and no other damages.

Justice Ruth Bader Ginsburg, citing the words of an appeals court judge in another case, said, “I also join 'the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime.'” That is to say, ERISA has been interpreted to provide protections to managed care plans that were never intended.

This decision means that if a physician is named in a lawsuit together with a managed care plan, and the suit falls under the ERISA statute, the odds are great that the only exposure to both parties will be the cost of the benefit denied.

The physician might still be sued separately. But unless and until Congress revisits the ERISA statute, physicians might find that being part of an ERISA plan isn't such a bad position to be in.

[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.