A recent opinion by Oregon District Court Judge Michael H. Simon established that the Oregon District Court would adhere to precedent established in the Court of Appeals for the Ninth Circuit, refusing to recognize a federal privilege with respect to medical peer review materials.
The opinion arose as part of a discovery dispute in an ongoing case, Roberts v. Legacy Meridian Park, et al, 3:13-cv-01136-SI. In Roberts, Plaintiff, an African-American neurological surgeon, asserts various claims against the hospital at which he maintains privileges and against other neurosurgeons at the hospital with similar privileges. The crux of Plaintiff’s claims are that as a result of racial animus he was subjected to improper peer-review and a subsequent suspension of privileges. As a part of the litigation Plaintiff sought discovery of peer review files of all physicians at the hospital. The hospital declined to produce the files, citing Oregon’s peer review privilege statute—ORS 41.675—and Plaintiff moved to compel production.
Generally, when a plaintiff brings both federal question claims and pendent state law claims, the federal common law of privilege applies. The Ninth Circuit, in Agster v. Maricopa Cnty., 422 F3d 836, 839-40 (9th Cir. 2005), expressly declined to create a federal peer review privilege. Defendants argued that Agster was not binding precedent on the basis that it was limited to peer review in a prison setting and the Agster court had noted the unique “demands for public accountability” in the prison context. Judge Simon disagreed, and concluded that Agster was binding. Moreover, as Judge Simon noted, the Supreme Court had stated before that “if there is a ‘smoking gun’ to be found that demonstrates discrimination in tenure decisions, it is likely to be tucked away in peer review files.” Univ. of Pa. v. EEOC, 493, US 182, 193 (1990). As a result, Judge Simon opined, evidence of discriminatory intent would likewise be contained in medical peer review documents.
Judge Simon also recognized that even if ORS 41.675 had been applicable, a statutory exception applied. ORS 41.675(6) states that its protections do not apply to proceedings where a practitioner contests the denial, restriction, or termination of clinical privileges by a health care facility. According to Judge Simon, under the facts of the case, Plaintiff’s allegations in the suit regarding his clinical privileges fell within the exception at ORS 41.675(6) and therefore, ORS 41.675 would not act as a bar to production even if it were generally applicable to the case.
Judge Simon granted Plaintiff’s Motion to Compel, with the caveat that only Plaintiff’s own file along with the other defendant physicians’ files should be produced in response to the Motion to Compel, citing the important policy underlying peer review. The Judge concluded that should other files involving non-parties to the lawsuit become relevant, Plaintiff would have to make a specific showing of (1) why that discovery would be reasonably likely to lead to relevant evidence, and (2) how much it would cost to review and redact confidential personal information from the documents.
See link to opinion.