Veith v. Portage County, Ohio, Board of Commissioners et al

Filing 83

Order denying Plaintiff's Motion to compel discovery (Related Doc # 76 ); granting the Health Care Defendants' Motion for protective order (Related Doc # 77 ). The Defendants shall provide the Court all documents they claim fall under the privilege for an in camera inspection within seven days of this order. See order for further details. Judge John R. Adams on 10/11/12.(L,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Debbie Veith,
Plaintiff,
v.
Portage County, Ohio, Board of Commissioners, et
al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO. 5:11CV2542

JUDGE JOHN R. ADAMS
ORDER

(Resolves Docs. 76, 77)

Pending before the Court is Plaintiff Debbie Veith’s motion to compel (Doc. 76) and
Defendants’ motion for a protective order (Doc. 77). For the reasons stated herein, the motion to
compel is DENIED, and the motion for a protective order is GRANTED.
During discovery in this matter, Veith has sought a mortality and morbidity review from
the Health Care Defendants. The Health Care Defendants do not deny that they possess such a
document, but have refused to release the document. Veith, therefore, has sought to compel its
production. In response, the Health Care Defendants have sought a protective order, asking this
Court to recognize a federal privilege that would apply to the review. The Court now resolves the
parties’ pending motions.
F.R.E. 501 provides:
Except as otherwise required by the Constitution of the United States or provided
by Act of Congress or in rules prescribed by the Supreme Court pursuant to
statutory authority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles of the common law
as they may be interpreted by the courts of the United States in the light of reason
and experience. However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the rule of decision, the
privilege of a witness, person, government, State or political subdivision thereof
shall be determined in accordance with State law.

The Supreme Court has discussed the background of this rule:
The common-law principles underlying the recognition of testimonial privileges
can be stated simply. “‘For more than three centuries it has now been recognized as
a fundamental maxim that the public ... has a right to every man’s evidence. When
we come to examine the various claims of exemption, we start with the primary
assumption that there is a general duty to give what testimony one is capable of
giving, and that any exemptions which may exist are distinctly exceptional, being
so many derogations from a positive general rule.’” United States v. Bryan, 339
U.S. 323, 331 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed.1940)).
See also United States v. Nixon, 418 U.S. 683, 709 (1974). Exceptions from the
general rule disfavoring testimonial privileges may be justified, however, by a
“‘public good transcending the normally predominant principle of utilizing all
rational means for ascertaining truth.’” Trammel, 445 U.S., at 50 (quoting Elkins v.
United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting)).
Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (footnote omitted). Accordingly, a federal common law
privilege should not be created and applied unless it “‘promotes sufficiently important interests to
outweigh the need for probative evidence....’” Id. at 9–10 (quoting Trammel v. United States, 445
U.S. 40, 51 (1980)). In making this determination, a district court must consider: (1) whether the
privilege serves private and public interests; (2) the evidentiary benefit that would result from
denial of the privilege; and (3) recognition of the privilege among the States. See Jaffee, 518 U.S.
at 10–12.
To that end, the asserted privilege: (1) must be “‘rooted in imperative need for
confidence and trust,’” and (2) “‘must also serv[e] public ends.’” [Jaffee, 518 U.S.]
at 10–11. Finally, the Court observed that the policy decisions of the States bear
on the question whether federal courts should recognize a new privilege or amend
the coverage of an existing one. Id. at 12–13. After all, “state legislatures are fully
aware of the need to protect the integrity of the factfinding functions of their
courts” and a “State’s promise of confidentiality would have little value if the
[individuals it protects] were aware that the privilege would not be honored in a
federal court.” Id. at 13.
Sevilla v. United States, 852 F.Supp.2d 1057, 1059 (N.D.Ill. 2012)
The Sevilla court examined an issue very similar to the one presented herein. In doing so,

that court noted that “[t]he legislatures in every state in the Nation have concluded that without a
peer review privilege, physicians will be discouraged from participating in the full and frank
expression of opinion that is essential if peer review is to fulfill its vital role in advancing the
quality of medical care.” Id. at 1060. Other courts have noted as follows:
To recognize hospital review or disciplinary proceedings as privileged in the
context of a malpractice action will generally have little impact upon the plaintiff’s
ability to prove a meritorious claim. For the crucial issue in that type of case is not
what occurred at the review proceeding, but whether the defendant was in fact
negligent in his care and treatment of the plaintiff. As the court in Bredice went on
to note, “‘what someone ... at a subsequent date thought of these acts or omissions
is not relevant to the case.’” Id. at 251, quoting Richards v. Maine Central R., 21
F.R.D. 590, 592 (D.Me. 1957). More importantly, the exclusion of that information
will not prevent the plaintiff from otherwise establishing a valid claim.
Memorial Hospital for McHenry Cty. v. Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981).
However, this Court recognizes that a substantial number of federal courts have declined to
expand the federal common law to include a privilege for physician peer review materials.
[T]he great weight of the federal cases, many of them decided after Jaffee, counsel
that such a privilege does not exist in the federal common law, and should not be
recognized in a case such as this. Furthermore, as alluded to above, predictable law
is sound law, and consistent and uniform jurisprudence is what should undergird
the federal judiciary.
Nilavar v. Mercy Health System-Western Ohio, 210 F.R.D. 597, 607 (S.D.Ohio 2002) (emphasis
sic) (declining to recognizing a physician peer review privilege in an antitrust suit). These
decisions, however, are often fact dependent.
Although there appears to be consensus among lower courts and in other circuits
that no federal privilege protects medical peer review materials in civil rights or
antitrust actions, see, e.g., Adkins v. Christie, 488 F.3d 1324, 1330 (11th Cir. 2007)
(racial discrimination action); Virmani v. Novant Health, Inc., 259 F.3d 284, 289
(4th Cir. 2001) (racial discrimination action); Mem’l Hosp. v. Shadur, 664 F.2d
1058, 1063 (7th Cir. 1981) (per curiam) (antitrust action); Zoom Imaging v. St.
Luke’s Hosp. & Health Network, 513 F.Supp.2d 411, 415–16 (E.D.Pa. 2007)
(antitrust action); Johnson v. Nyack Hosp., 169 F.R.D. 550, 561 (S.D.N.Y. 1996)
(racial discrimination action), no such consensus has developed in medical or

dental malpractice actions. See Tucker v. United States, 143 F.Supp.2d 619, 626
(S.D.W.Va. 2001) (declining to recognize federal peer review privilege); Syposs,
63 F.Supp.2d at 304 (declining to recognize federal peer review privilege); but see
KD ex rel. Dieffenbach v. United States, 715 F.Supp.2d 587, 597–98 (D.Del.2010)
(recognizing peer review privilege); Weekoty, 30 F.Supp.2d at 1348 (recognizing
self-critical analysis privilege).
Francis v. United States, 2011 WL 2224509, at *4 (S.D.N.Y. May 31, 2011).
Similar to the analysis in Francis, the Health Care Defendants have asserted that the
rationale in many of the cases that rejected the privilege is undermined by the fact that those cases
were not medical malpractice actions. In that regard, the Court notes that while the complaint
contains both a § 1983 action and medical malpractice claims, the § 1983 action sounds directly in
malpractice. In fact, to succeed, Veith would need to show more than malpractice to succeed on
her deliberate indifference claim.

Accordingly, the Court is persuaded that the precedents

reviewing the privilege in the medical malpractice context are most informative.
As the Shadur court noted in the Seventh Circuit, recognizing the privilege in a medical
malpractice case does not affect a plaintiff’s ability to prove his case.

In fact, such an

after-the-fact review has no relevance to the underlying claim.
“In contrast to the significant public and private interests supporting recognition of
the privilege, the likely evidentiary benefit that would result from the denial of the
privilege is modest.” [Jaffee], 518 U.S. at 11. As discussed previously, courts that
have declined to recognize a peer review privilege in the past have done so,
primarily, in civil rights actions, and, in large measure, because peer review
materials in such actions have been deemed essential to the plaintiff’s case. See
Univ. of Pa., 493 U.S. at 193 (“Often ... disclosure of peer review materials will be
necessary ... to determine whether illegal discrimination has taken place. Indeed, if
there is a ‘smoking gun’ to be found ... it is likely to be tucked away in peer review
files.”); Johnson, 169 F.R.D. 550, 558–59, n. 12 (“While the confidentiality of peer
review records undoubtedly is an important state interest, in many cases, the only
proof of employment discrimination that a plaintiff might have may be contained in
such records.”). No similar circumstance attends in this action. The plaintiffs are in
possession of all the decedent’s MLK records and they may procure their own
expert to evaluate the quality of care the decedent received at MLK. Depending on
the conclusion(s) reached during the review, the quality assurance records may aid

the plaintiffs in prosecuting this action, but the records are by no means the only
way the plaintiffs may establish their claims against the defendant.
Francis v. United States, 2011 WL 2224509, at *5 (S.D.N.Y. May 31, 2011).
As noted above, Jaffee directs this Court to consider three broad factors in determining
whether to recognize a privilege: (1) whether the privilege serves private and public interests; (2)
the evidentiary benefit that would result from denial of the privilege; and (3) recognition of the
privilege among the States. As detailed above, there is little to no evidentiary benefit that would
result from the denial of the privilege. The information obtained would likely be irrelevant and
inadmissible. Additionally, all fifty states have recognized the privilege at issue. This leaves
only the private and public interests to be examined.
The Francis court described those interests as follows:
The success of a hospital’s quality assurance review process “depends upon an
atmosphere of confidence,” see [Jaffee], 518 U.S. at 10, in which health care
practitioners give frank and complete answers to questions posed by their peers. In
his declaration, Gates opines that disclosing materials generated as part of a quality
assurance review “would likely cause physicians and dentists to be less than open
with the quality assurance reviewers for fear of the quality assurance report being
used against them in litigation.” According to Gates, reduced candor by physicians
and dentists during the quality assurance review process would significantly impair
the ability of MLK to: (1) analyze the facts of a given medical case; (2) take
corrective action or implement corrective measures; (3) educate physicians and
dentists based on past experience; and (4) determine whether discipline is
warranted. The Court is persuaded that a privilege protecting peer review records
from disclosure in medical or dental malpractice actions would promote the
interests of health care practitioners, health care facilities and the public, by
encouraging self-evaluation and improving the quality of care.
Francis, supra, at *5. Other courts have noted that the public interest is “overwhelming.”
Weekoty v. United States, 30 F.Supp.2d 1343, 1347-48 (D.N.M. 1998) (“Given the ‘overwhelming
public interest’ in providing physicians with a confidential context in which to evaluate the
effectiveness of life-saving techniques and procedures, the Court is compelled to recognize the

self-critical analysis privilege in the context of morbidity and mortality conferences and will apply
it in this case.”) “Clearly the public good—saving lives and correcting life threatening errors by
physicians resulting from preserving the confidentiality of morbidity and mortality
conferences—outweighs the general preference for open discovery.” Id. at 1348.
The Court agrees with the above authorities. The public interest lies strongly in favor of
recognizing a privilege for these materials in medical malpractice actions. Again, the Court
reiterates that while framed as both a malpractice action and a § 1983 claim, Veith cannot be
successful on either claim without demonstrating medical malpractice. While the failure to
recognize such a privilege may not altogether eliminate peer review, the chilling effect of
disclosure will significantly impede the overriding purpose of the peer review process – improving
overall patient care. Doctors will no doubt become increasingly more reluctant to engage in the
process knowing that their opinions may become public and that they could conceivably be drawn
into litigation against their will.

Accordingly, the Court finds that all three broad factors

discussed in Jaffee weigh heavily in favor of recognizing he privilege.
The Health Care Defendants’ motion for a protective order is GRANTED. Plaintiff’s
motion to compel is DENIED. The Health Care Defendants are instructed to provide all of the
documents that they claim would fall under this privilege to the Court for an in camera inspection
within seven (7) days of this order.

The Court will thereafter determine the scope and

applicability of the privilege to each document.
IT IS SO ORDERED.

October 11, 2012
Dated

/s/ John R. Adams_____________________
JUDGE JOHN R. ADAMS
United States District Judge