# Wollman v. Massachusetts General Hospital Inc.

> District Court, D. Massachusetts · November 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10199029

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** November 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199029

## How later opinions describe it (automated extraction)

- 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”
- declining to recognize a peer review privilege in the context of civil investigation of allegedly faulty health care billing
- declining to apply peer review privilege to sex discrimination claim
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199029. Public record. Not legal advice.