Wollman v. Massachusetts General Hospital Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA and the )

COMMONWEALTH OF MASSACHUSETTS, )

)

Plaintiffs, )

ex rel. ) CIVIL ACTION NO.

) 15-11890-ADB

LISA WOLLMAN, M.D. )

)

v. )

)

MASSACHUSETTS GENERAL HOSPITAL, INC., )

THE MASSACHUSETTS GENERAL HOSPITAL’S )

PHYSICIAN’S ORGANIZATION, and )

PARTNERS HEALTHCARE SYSTEM, INC., )

)

Defendants. )

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF/RELATOR’S

MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS WITHHELD

ON THE BASIS OF THE MASSACHUSETTS PEER REVIEW PRIVILEGE

November 3, 2020

DEIN, U.S.M.J.

I. INTRODUCTION

Plaintiff/Relator Lisa Wollman, M.D., a former anesthesiologist at Massachusetts

General Hospital (“MGH”) has brought a qui tam action under the False Claims Act (“FCA”), 31

U.S.C. §§ 3729 et seq., and the Massachusetts False Claims Act (“MFCA”), Mass. Gen. Laws ch.

12, § 5B against MGH, Massachusetts General Physicians Organization (“MGPO”), and Partners

Healthcare System (“Partners”) (collectively the “Defendants” or “MGH”). Dr. Wollman alleges

that the Defendants fraudulently billed Medicare and Medicaid for overlapping and concurrent

surgeries that required two patients to be under anesthesia at the same time. (See

Memorandum and Order on Defendants’ Motion to Dismiss (Docket No. 102) (“MTD Order”)1 at

3). Specifically, Dr. Wollman alleges that the “Defendants’ widespread use of Concurrent

Surgery (1) endangered patients by placing them under ‘unnecessarily prolonged

administrations of anesthesia’ that are not ‘reasonable and necessary’ and thus not

reimbursable; (2) violated informed consent regulations by using a ‘relatively non-descript

informed consent form and routinely t(aking) other affirmative steps to conceal the practice of

concurrent and overlapping surgeries from patients that resulted in a lack of informed consent;’

(3) violated record-keeping regulations because ‘surgeons falsified or failed to keep accurate

records to conceal their practices;’ and (4) caused government payors to pay for work that

teaching physicians did not do, either because they were not ‘immediately available’, did not

designate qualified backup surgeons, were not present for ‘key or critical’ parts of surgery, or

never appeared in the hospital room at all.” (Pl. Mem. re Stern Report (Docket No. 122-1) at

1).2

This matter is presently before the court on “Plaintiff-Relator’s Motion to Compel

Production of Certain Withheld Documents” (Docket No. 203) pursuant to which the Relator is

seeking to compel the production of documents withheld on the basis of a peer review

1 The MTD Order is published as United States v. Gen. Hosp. Corp., 394 F. Supp. 3d 174 (D. Mass. 2019).

2 The relevant pleadings addressing the Plaintiff’s motion to compel presently before this court include

“Relator’s Memorandum of Law Supporting Her Motion to Compel Production of Certain Withheld

Documents” (Docket No. 204) (“Rel. PR Mem.”); “Defendants’ Opposition to Plaintiff-Relator’s Motion to

Compel Production of Documents Withheld on the Basis of the Massachusetts Peer Review Privilege”

(Docket No. 210) (“Def. PR Opp.”) and “Relator’s Reply Memorandum in Further Support of Her Motion

to Compel Production of Certain Withheld Documents” (Docket No. 211) (“Rel. PR Reply”).

privilege. For purposes of this motion, it is undisputed that the documents at issue would be

protected from production in state court by the Massachusetts peer review privilege as set

forth in Mass. Gen. Laws ch. 111, § 204. (Rel. PR Mem. at 2-3; Def. PR Opp. at 6-7). The issue

presently before the court is whether this court will apply a peer review privilege in the instant

federal proceedings.

After careful consideration of the written and oral arguments of the parties, this court

holds that the peer review privilege does not apply in the instant case alleging health care

billing fraud. Nothing herein, however, constitutes a ruling on whether the requested

documents are relevant, or whether any other privileges apply. The Defendants shall modify

their privilege log, if necessary, to reflect which documents on the log are still being withheld

following this Order.3

II. ANALYSIS

The peer review privilege, under Massachusetts law, “protects from disclosure any

proceedings, reports, and records of a medical peer review committee, as well as any additional

documents or information prepared in order to comply with risk management or quality

assurance programs established by the state.” Tep v. Southcoast Hosps. Grp., Inc., Civil Action

No. 13-11887-LTS, 2014 WL 6873137, *2 (D. Mass. Dec. 4, 2014) (citing Mass. Gen. Laws ch.

111, §§ 204, 205). “[T]he fundamental purpose of the peer review privilege statute is to

3 The Defendants contend that they have claimed the privilege for four categories of documents: (1)

“communications regarding specific cases for medical peer review”; (2) “safety reporting documents”;

(3) “overarching analyses of surgical quality and safety outcomes”; and (4) “meeting minutes and

records of committee meetings for peer review purposes.” (Def. PR Opp. at 3-4). While the Defendants

contend that the documents requested are not relevant, at oral argument they asked that the court rule

on the application of the peer review privilege to the instant case, and not on the issue of the relevancy

of the documents.

promote quality health care.” Krolikowski v. Univ. of Mass., 150 F. Supp. 2d 246, 249 (D. Mass.

2001). Thus, the medical privilege is intended “to promote candor and confidentiality . . . and

to foster aggressive critiquing of medical care by the providers peers.” Gargiulo v. Baystate

Health, Inc., 826 F. Supp. 2d 323, 324 (D. Mass. 2011), objections overruled, 279 F.R.D. 62 (D.

Mass. 2012) (internal punctuation and citation omitted). The privilege stems from “‘a

perceived medical malpractice crisis and doubts about the efficacy of self-regulation by the

medical profession.’” Id. (quoting Carr v. Howard, 426 Mass. 514, 517, 689 N.E.2d 1304, 1306

(1998)).

“No peer review privilege exists in the Federal Rules of Evidence[.]” Tep, 2014 WL

6873137, at *2. Where, as here, a case presents a federal question, “federal common law”

applies to both federal and state law claims. Id. (citation omitted). The First Circuit has

determined that two questions must be answered in the affirmative in order to recognize a

state evidentiary privilege in the federal common law. First, would Massachusetts courts

recognize such a privilege? In re Hampers, 651 F.2d 19, 22 (1st Cir. 1981). Here, it is

undisputed that Massachusetts law has a medical peer review privilege, and for the purposes of

this motion the parties agree that the privilege would apply to the documents being withheld

on the basis of the privilege. See Mass. Gen. Laws ch. 111, §§ 204, 205; (Rel. PR Mem. at 2-3;

Def. PR Opp. at 6-7).

The second question which must be answered is whether the privilege is “intrinsically

meritorious?” In re Hampers, 651 F.2d at 22 (internal punctuation and citation omitted). To

make this determination, a court must answer four inquiries favorably to the party seeking to

invoke the privilege: 1) “whether the communications originate in a confidence that they will

not be disclosed”; 2) “whether this element of confidentiality is essential to “the full and

satisfactory maintenance of the relation between the parties”; 3) whether the relationship “is a

vital one, which ought to be sedulously fostered”; and 4) whether “the injury that would inure

to the relation by the disclosure of the communications (would be) greater than the benefit

thereby gained for the correct disposal of litigation.” Id. at 23 (internal punctuation and

citations omitted); Tep, 2014 WL 6873137, at *4.

The first three inquiries favor applying the privilege in this case. In Massachusetts,

medical peer review committee proceedings, reports, and records “shall be confidential.”

Mass. Gen. Laws ch. 111 § 204(a). This confidentially is essential as “[p]hysicians would be far

less willing candidly to report, testify about, and investigate concerns of patient safety if their

actions would be subject to later scrutiny and possible litigation.” Ayash v. Dana-Farber Cancer

Inst., 443 Mass. 367, 396, 822 N.E.2d 667, 691 (2005). Finally, it is common sense that

relationships that effectively promote patient safety ought to be “sedulously fostered.” In re

Hampers, 651 F.3d at 23 (internal quotation omitted); Tep, 2014 WL 6873137, at *4.

The final inquiry prevents this court from recognizing the peer review privilege in the

instant case. It “essentially weighs the federal interest generally favoring disclosure against the

state interest in the asserted privilege.” Tep, 2014 WL 6873137, at *4 (internal punctuation and

citation omitted). “It makes a difference whether the federal interest in seeking full disclosure

is a weak or strong one.” In re Hampers, 651 F.2d at 22. In this case, the nature of the FCA

claim and relevant federal laws leads to the conclusion that the important federal interest in

prosecuting health care billing fraud weighs strongly in favor of disclosure.

Nature of the Claim

The nature of the claim analysis highlights the federal interest at stake in the claim and

compares it to the state interest in the privilege. Courts have applied the medical peer review

privilege to claims where malpractice and patient care decisions were the essence of the

federal claim, since the privilege “exists primarily to address concerns arising from anticipated

malpractice litigation.” See Tep, 2014 WL 6873137, at *4-5 (recognizing the privilege in a

wrongful death/negligence case which included a claim under EMTALA – a federal statute

which restricts when hospitals may transfer individuals presenting with emergency medical

conditions); Francis v. United States, Civil No. 09-4004-GBD-KNF, 2011 WL 2224509, at *6-7

(S.D.N.Y. May 31, 2011) (recognizing the privilege in malpractice/wrongful death action brought

under the Federal Torts Claims Act). In arriving at the decision to apply the privilege, the courts

have recognized that the state’s goal in applying a privilege to improve the quality of medical

care coincided with the goal of the federal statute at issue. See, e.g., Tep, 2014 WL 6873137, at

*5 (finding that the privilege would “promote important federal interests in ensuring patient

safety and preventing ‘patient dumping’ by encouraging full and fair peer review of adverse

events that arise as a result of potential EMTALA violations[.]”); Francis, 2011 WL 2224509, at

*5 (“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.”). See also United States v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066, 1068 (E.D. Wis.

2015) (noting that “a few district courts have recognized a peer-review privilege in cases

involving federal claims that were analogous to state medical-malpractice claims”) and cases

cited.

However, courts have declined to recognize the medical peer review privilege in cases

with claims not directly connected to malpractice. See Wisconsin Province of Soc’y of Jesus v.

Cassem, No. 3:19-mc-00130 (VLB), 2020 WL 3470454, at *5 (D. Conn. 2020) (declining to

recognize the medical peer review privilege in a dispute regarding a deceased doctor’s capacity

to designate a beneficiary); Gargiulo, 826 F. Supp. 2d at 327-28 (declining to recognize the peer

review privilege in an employment discrimination case implicating civil rights); KD ex rel.

Dieffenbach v. United States, 715 F. Supp. 2d 587, 597 (D. Del. 2010) (noting that claims alleging

malpractice do not have the same important federal interest at stake as claims “alleging

violation of federal civil rights (which implicate the strong federal policy of rooting out invidious

discrimination) or anti-trust laws (which involve the equally vital purpose of eradicating

anticompetitive business practices”); Krolikowski, 150 F. Supp. 2d at 248-49 (declining to apply

peer review privilege to sex discrimination claim).

The instant case involves a closer question. Despite her present challenge to the

application of the peer review privilege, the Plaintiff/Relator has consistently argued that her

motivation in challenging the practice of overlapping surgeries was patient safety, and that the

billing requirements were designed to improve the quality of medical care. Equally

incongruous, despite their present assertion that the peer review privilege should apply, the

Defendants have consistently presented this case as a billing dispute, unrelated to the quality of

care. While these divergent positions may eventually be important in determining the

admissibility of evidence at trial, this court concludes that the present dispute is sufficiently far

removed from the purpose of the peer review privilege that the privilege should not apply in

the instant case.

“The [FCA] imposes civil liability on ‘any person’ who ‘knowingly presents, or causes to

be presented, a false or fraudulent claim for payment or approval’ to the Government or to

certain third parties acting on the Government's behalf.” Cochise Consultancy, Inc. v. United

States ex rel. Hunt, 139 S. Ct. 1507, 1510, 203 L. Ed. 2d 791 (2019) (citing 31 U.S.C. §§ 3729(a),

(b)(2)). The patient care attached to the allegedly fraudulent bills is not directly at issue in this

case. The challenged surgeries may all have had very successful outcomes, yet the billing may

have been inappropriate under Medicare and Medicaid regulations. Similarly, a negative

outcome could, nevertheless, have been billed in compliance with the regulations. Moreover,

while a potential malpractice suit might inhibit the medical profession from analyzing medical

treatment (and hence warrant the application of a peer review privilege), there is nothing in the

record which would support a conclusion that a potential billing challenge in the future would

inhibit such self-analysis. Thus, the goal of the peer review privilege would not be thwarted if it

was not applied in this case. On the other hand, the application of the privilege may deny the

Relator access to information which the Relator believes may establish, among other things,

that the Defendants knew about fraudulent billing practices. “Thus, recognizing the privilege in

this case would come with a high cost: preventing the government from gaining access to

evidence that might reveal that federal healthcare programs have been defrauded.” Aurora

Health Care, Inc., 91 F. Supp. 3d at 1069 (declining to recognize a peer review privilege in the

context of civil investigation of allegedly faulty health care billing)

The parties have not identified any cases where a peer review privilege has been applied

to claims of fraudulent billing and none have been found. Rather, other courts have

consistently refused to recognize a medical peer review privilege in cases involving allegations

of health care billing fraud. See United States ex rel. Polukoff v. Sorensen, No. 2:16-cv-00304-

TS-DAO, 2020 WL 5645319, at *3 (D. Utah 2020) (declining to apply peer review privilege in the

context of discovery sought in a FCA case where peer review documents might help the Relator

establish scienter); In re Admin. Subpoena Blue Cross Blue Shield of Mass., Inc., 400 F. Supp. 2d

386, 392 (D. Mass. 2005)(“[T]he federal interest in this investigation is to enforce laws against

health care fraud, an interest other federal courts have found sufficiently strong to refuse to

recognize a federal medical peer review privilege.”) and cases cited. This case offers no

differentiating factors which would cause this court to diverge from the precedent set by other

courts.

Federal Statutes

Courts also look to relevant federal law to determine if Congress’s goals in enacting the

relevant laws would be furthered by recognizing the privilege. In reviewing federal law, courts

must be “especially reluctant to recognize a privilege in an area where it appears that Congress

has considered the relevant competing concerns but has not provided the privilege itself.” Univ.

of Pa. v. EEOC, 493 U.S. 182, 189, 110 S. Ct. 577, 582, 107 L. Ed. 2d 571 (1990) (declining to the

extend the peer review privilege to educational institutions when Congress could have included

the privilege in Title VII but did not).

As it pertains to the peer review privilege two federal statutes are relevant, the Health

Care Quality Improvement Act of 1986 (“HCQIA”) and the Patient Safety Quality Improvement

Act of 2005 (“PSQIA”). The HCQIA promotes physician engagement in the peer review process

by extending qualified immunity to those conducting peer reviews. 42 U.S.C. §§ 11101(5),

11111 (a)(2) (1986). “Significantly, Congress did not also create a federal evidentiary privilege

for most documents produced during such a review, indicating that it ‘not only considered the

importance of maintaining the confidentiality of the peer review process, but took the action it

believed would best balance protecting such confidentiality with other important federal

interests.’” In re BCBS, 400 F. Supp. 2d at 390 (quoting Teasdale v. Marin Gen. Hosp., 138 F.R.D.

691, 694 (N.D. Cal. 1991)). In doing so, Congress chose not to include a medical peer review

privilege covering all peer review materials in the HCQIA. See id.

The more recent PSQIA has been construed to “signal[]a ‘shift in congressional policy’

aimed at providing broad protection for peer review work product in an effort to improve

patient safety and quality of care.” Tep, 2014 WL 6873137, at *5; see generally 42 U.S.C. §

299b-1 et seq.. It “‘tackled the larger problem of systemic weaknesses in the delivery of health

care resulting in preventable adverse events.’” Id. at *2 (quoting KD, 715 F. Supp. 2d at

595). To do so, the PSQIA provides evidentiary protection to materials used in the medical peer

review process that were “gathered or generated in connection with reports to specified

‘patient safety organizations.’” Id.

Congress’s silence is telling. Congress expanded protections over the medical peer

review process but notably limited the expansion to documents related to reports for “patient

safety organizations.” Congress did not extend the privilege to include all medical peer review

evidence from medical care providers. Further, unlike in cases where patient care was a central

issue, the purpose of the PSQIA will not be advanced by recognizing the medical peer review

privilege in the instant case, where the quality of patient care is not directly at issue.

In sum, both the nature of the claims being brought and Congress’s decision not to

create a broad medical peer review privilege dictate that this court decline to recognize the

medical peer review privilege in this case. The federal interest in preventing billing fraud

outweighs the state interest at issue. Finally, given “that the production of documents would

be subject to a protective order to preserve confidentiality, any concerns about discouraging

rigorous and honest evaluation of physician conduct by public disclosure have been

minimized.” In re BCBS, 400 F. Supp. 2d at 391.

III. CONCLUSION

For the reasons detailed herein, “Plaintiff-Relator’s Motion to Compel Production of

Certain Withheld Documents” (Docket No. 203) is ALLOWED. The peer review privilege does

not apply in the instant case alleging health care billing fraud. Nothing herein, however,

constitutes a ruling on whether the requested documents are relevant, or whether any other

privileges apply. The Defendants shall modify their privilege log, if necessary, to reflect which

documents on the log are still being withheld following this Order.

/ s / Judith Gail Dein

Judith Gail Dein

United States Magistrate Judge