Opposition Brief — Christie v. Adkins (No. 07-538)

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ARTHUR P. CHRISTIE, ANTHONY L. ALFORD, DANIEL

E. DEIGHTON, FREDERICK W. JENNART, DAVID N.

HARVEY, M.D., MICHAEL A. HELLWEGE, M.D., F-.

HUNT SANDERS, M.D., RICHARD J. SULLIVAN, M.D.,

TITUS A. TAUBE, M.D., C. SCOTT EDENFIELD, M.D.,

RAHIL KAZI, M.D., RICHARD L. HEATON, M.D.,

BRITTON L. PILCHER, M.D., SANTANU DAS, M.D.,

THOMAS C. JOHNSON, M.D., RICHARD B. ELLIS, M.D.,

HOSPITAL AUTHORITY OF HOUSTON COUNTY

d/b/a/ HOUSTON MEDICAL CENTER,

Petitioners,

v.

RUSSELL E. ADKINS, M_D.,

Respondent.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

¢

ALTHEA L. BUAFO (Counsel of Record)

Georgia Bar No. 092065

BERNADETTE C. CRUCILLA

Georgia Bar No. 199001

BUAFO & ASSOCIATES

201 Spring Street — P.O. Box 4012

Macon, Georgia 31208

(478) 743-8337

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether this Court should create a privilege

against the disclosure of confidential medical peer

review documents in the limited context of federal

civil rights actions which allege discrimination within

the peer review process, itself.

ii

TABLE OF CONTENTS

Page

BWUBSTION PRESENTED .........cccoccccccsssccccsessesseees i

TERED GPE PAW) LEE ER LSD vce cscesesvsesccccccccsesoveveneees iil

STATEMENT OF FACTS AND COURSE OF

PROCEEDINGS BELOW. ............scccscssssssscsesssecees 1

EE 1

SUMMARY OF THE ARGUMENT ...............cceeeees 2

REASONS FOR DENYING THE PETITION........ 5

ill

TABLE OF AUTHORITIES

Page

CASES

UNITED STATES SUPREME COURT CASES

Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923

CGT sinnorecsncsinssintiinisliaiiiieliemacmmaia passim

University of Pennsylvania v. EEOC, 493 U.S.

pt Bek ce Me og Ch mercer mien passim

ELEVENTH CIRCUIT CASES

Christie, et al. v. Adkins, 488 F.3d 1324 (11th

CRE SU ee ovssnitastctiescdiidatieinle tdduneniabodseienddidaddamaniametiaied 1,4

DISTRICT COURT CASES FOR THE ELEVENTH CIRCUIT

Azeez P. Adeduntan v. Hosp. Auth. Of Clarke

County, 2005 WL 2074248 (M.D.Ga.) ..c.cssesesseeeses 16

Blaubergs v. Bd. of Regents of Univ. System of

Georgia, 661 F.2d 426 (5th Cir. 1981)... 2i

Marshall v. Americus-Sumter County Hosp.

Authority, 2002 U.S. Dist. LEXIS 26822

CRF oiciiniticashscccivetseciseebidtiin +e diiedeaciiiinamaiaactuiataa 12

CIRCUIT/DISTRICT CASES

Anderson v. Marion County Sheriff’s Dept., 220

F.R.D. 555 (S.D. Ind. 2004)...........ccc000. siiabiiebidaatanuaes 14

Bell v. Woodward Governor Co., 2004 U.S. Dist.

LEXIS LOGS Char, BB, BOOED) a cvccsccccscecesnscesecesescsessess 14

iV

TABLE OF AUTHORITIES — Continued

Page

Braswell v. Haywood Regional Med. Ctr., 352

F. Supp.2d 639 (W.D.N.C. 2005)..............sscscccsssseess 16

Bredice v. Doctor’s Hospital, Inc., 50 F.R.D. 249

eta aa aiceaeiecsts calico scsi dtsacbaain in bush eiileetendaioes 20

EEOC v. Franklin & Marshall Coll., 775 F.2d

I: ie ia es ansenaneniies 12

Holland v. Muscatine Gen. Hosp., 971 F. Supp.

fs EE | SNR Re a 12

Johnson v. Nyack Hosp., 169 F.R.D. 550

I areal citi pnetaicaenscbatecneemcseanemoncsiines 13

Johnson v. United Parcel Service, Inc., 220

PRED. GBS CM. .FIR. DOOD) vc .cncecevccsseverececccosseess 13, 14

Lemasters v. Christ Hosp., 791 F.Supp. 188

SO IE BENE ciniiisninlintiidicesaeddanssinignscucoiedinnnsd 13, 16

Leon v. County of San Diego, 202 F.R.D. 631

Se ae en IE Rciiritas ctaddpoenaphaiitinwiendasuadenidabccsaparicte 14

Lizotte v. New York City Health And Hospitals

Corp., 1989 U.S. Dist. LEXIS 14114 (S.D.

es ie Ra iicieeatuaasitanlicaiisachceossaiclainddenctabndacbeseneteiane 14

Marshall v. Spectrum Med. Group, 198 F.R.D. 1

a is ah dnsadetncecalacicdiseasctihaniohictehhsiicdecisotaaianesdoinicasaie 12

Melendez v. Greiner, 2003 U.S. Dist. LEXIS

De CN Te, By cccetttcntctchcinentrnnesitininien eee 14

Memorial Hosp. for McHenry County ov.

Shadur, 664 F.2d 1058 (7th Cir. 1981).............. 3, 11

Nilvar v. Mercy Health Sys., 210 F.R.D. 597

GRRE, COE PE ei ickcedccnvnnsiibessacvnnncientonsntiients accion 13

Vv

TABLE OF AUTHORITIES — Continued

Page

Robertson v. Neuromedical Ctr., 169 F.R.D. 80

See aie MUM vse cudicchacaatciusvintcnintivetieaavoievesuseeadesious 13

Sonnino v. Univ. of Kansas Hosp. Auth., 220

Fear Ue ae Es I iivccssnsticssincsckeiionenesiaviieies 14

Virmani v. Novant Health, Inc., 259 F.3d 284

PIER Res NE ssibatestndtlrmsimounicas 3, 11, 12

United States v. Harris Methodist Ft. Worth,

970 F206 94 (GtB Civ. 1902) ccccccccesccocscccssscsenens 3,9, 10

Wei v. Bodner, 127 F.R.D. 91 (D.N.J. 1989)........00..... 13

GEORGIA STATE CASES

DHR v. Hutchinson, 217 Ga. App. 70 (1995)............. 16

Eubanks v. Ferrier, 245 Ga. 763 (1980)... eeeeee 20

Hollowell v. Jove, 247 Ga. 678 (1981)........ cece eeeeeecoee 20

McCall v. Henry Med. Ctr., Inc., 250 Ga. App.

ra GEE Bids aceandcinasestaisbncsmecieiccemeein 17

CONSTITUTIONS

Cie Coe ea TF aii orescence 3,9, 10

FEDERAL STATUTES

ae IE Sicaginkeeicceasvedsessanizcinistninaaiastenean 11

a es SE iissinstvsinsicivinisneieaiennane 15, 22

ae re Oe OD, a ndciissireceitinnteteeennamea 10

vi

TABLE OF AUTHORITIES — Continued

Page

I ees ee OO, iiineiinescnenisivinseinnsaiinidbaddicamenl 15

Oe Urs We OE OO. i cienincitinvnininncvtceniniabetinitn 2,15

GEORGIA STATE STATUTES

nner IPI? ON incscisn icieinentotueneroledeseipbeiningabinmnceibnenaie 18

nes TIE ee ncacinciicsbictestichbeseeenkevedebdensanenditisiindubieasail 22

Ie i IPE i iitccnniovstacksncceowiersiacessasoeeneassaaduatan 16

OTHER STATE STATUTES

L.S.A.-R.S. 13.3715.3 (Louisiama)...........cccccccseceeseeees 18

BE.C.L, SB1.BOT CRIA) oa sesiceccnciineseresencvesvivenseninen 18

ARTICLES

Hutton, Lawrence R., Sham Peer Review: A

National Epidemic, Association of American

Physicians and Surgeons, Inc. (2006)................... 18

LEGISLATIVE HISTORY

Be A, TE Semi FF viv carcdeiecdipactvinennicseiinsesensvenmelan 16

1

STATEMENT OF FACTS AND

COURSE OF PROCEEDINGS BELOW

The written opinion issued by the United States

Court of Appeals for the Eleventh Circuit, published

at Christie, et al. v. Adkins, 488 F.3d 1324 (11th Cir.

2007) and also located at Appendix (la) of the Peti-

tion For Writ of Certiorari filed by the Petitioners

held that the state-created medical peer review

privilege shall not be recognized in a federal civil

rights case alleging discrimination within the peer

review process, itself.

The Eleventh Circuit Court of Appeals’ opinion

includes a comprehensive Statement of Facts And

Course of Proceedings Below with which this Respon-

dent agrees. To avoid redundancy herein, Respondent

respectfully refers the Court to that opinion and shall

not reiterate same herein.

+

INTRODUCTION

Petitioners present no “compelling reasons” for

their Petition for a Writ of Certiorari to be granted.

See Sup. Ct. R. 10. Specifically, Petitioners fail to

demonstrate that the Eleventh Circuit’s June 12,

2007 Opinion is in conflict with a decision of this

Court or another Circuit Court of Appeals, or that

the Eleventh Circuit has decided an important fed-

eral question which has not already been settled by

this Court. See Sup. Ct. R. 10(a)-(c). Nor have they

2

demonstr.«! that there is a conflict among the

decisions of this Court.

In fact, Petitioners fail to give more than cursory

discussion of the fact that Congress has already

“spoken” on this issue by expressly exempting civil

rights cases from the Health Care Quality Improve-

ment Act, which provides immunity for participants

of peer review committees. See 42 U.S.C. §11111(a)(1).

Petitioners further fail to address the fact that

although state laws do recognize a medical peer

review privilege, many, if not all of the state laws

create an exception to the privilege where there is

bad faith participation within the peer review process

itself.

As illustrated in more detail below, Petitioners

have presented no viable reasons for this Court to

review the question presented at this time, thus their

Petition For Writ of Certiorari should be denied.

*

SUMMARY OF THE ARGUMENT

Petitioners contend that there is a conflict in

two major decisions issued by this Court, to wit,

University of Pennsylvania v. EEOC, 493 U.S. 182

(1990) and Jaffee v. Redmond, 518 U.S. 1 (1996)

requiring resolution by this Court. This is incorrect.

In Univ. of Penn. an important privilege was not

recognized under federal law where the discrimina-

tion complained of occurred within the peer review

3

proceedings, themselves, 493 U.S. 182 (1990). Con-

versely, in Jaffee, plaintiff attempted to obtain psychi-

atric information about a police officer whom she was

suing for a separate state wrongful death claim. 518

U.S. 1. The two cases are thus not in conflict, are

distinguishable and present no reason for this Court’s

review.

Nor does the Eleventh Circuit’s decision in the

instant case conflict with Jaffee, as it is a limited

holding and gives clear guidance to when the privi-

lege will not be recognized.

Petitioners additionally strenuously argue that

there is a split in the Circuits created by United

States v. Harris Methodist Ft. Worth, 970 F.2d 94 (5th

Cir. 1992) which requires resolution by this Court.

However, that court specifically did not base its

decision on the peer review privilege and rather

decided the case based on the reasonableness of

administrative searches under the Fourth Amend-

ment. In fact, that court addressed the privilege only

in passing and based its holding on other grounds. It

thus has little, if anything, to do with the Court of

Appeals decisions which have addressed this issue

and which have all determined that the medical peer

review privilege must yield to civil rights claims

alleging discrimination within the process, itself. See

Virmani v. Novant Health, Inc., 259 F.3d 284 (4th Cir.

2001); Memorial Hosp. For McHenry County v.

Shadur, 664 F.2d 1058 (7th Cir. 1981) and the instant

4

case, Christie v. Adkins, et al., 488 F.3d 1324 (11th

Cir. 2007).

Petitioners contend all states recognize a medical

peer review privilege, thus this Court should acqui-

esce to the dictates of state law and likewise establish

an air-tight privilege under federal law. This argu-

ment ignores the fact that even state medical peer

review laws exempt from immunity those individuals

acting in bad faith or with malice within the process,

itself.

Petitioners also contend that due to the impor-

tance of confidential medical peer review proceedings,

failing to recognize a privilege within the context of

federal discrimination cases will eviscerate the public

health benefits provided by medical peer review.

While it cannot be disputed that medical peer review

provides an important public purpose, it also cannot

be denied that ferreting out invidious discrimination

is likewise, if not a more compelling public policy

issue. There are furthermore many quality of care

and public health benefits to be derived from ensur-

ing that competent minority physicians be protected

from hindrance to their medical practices by those

who are motivated by hatred and fear.

Further, an additional policy rationale for the

confidentiality of medical peer review documentation

is to protect it from being utilized by plaintiffs to

prove standard of care issues in state medical mal-

practice actions. Failing to recognize the privilege in

the limited context of federal discrimination claims

9)

within the peer review process itself will not eviscerate

such protections and those physicians acting in good

faith within the process have nothing to fear.

¢

REASONS FOR DENYING THE PETITION

I.

There Is No Conflict Between Decisions

Rendered By This Court Requiring

This Court To Hear This Case

Petitioners argue that because there is a conflict

in two major decisions issued by this Court, to wit,

University of Pennsylvania v. EEOC, 493 U.S. 182

(1990) and Jaffee v. Redmond, 518 U.S. 1 (1996), this

Court should hear this matter in order to resolve

same. However, a reading of the two decisions reveals

that there is no true conflict.

Jaffee, 518 U.S. 1, 116 S.Ct. 1923, is simply not in

conflict with this Court’s ruling in Univ. of Penn. v.

EEOC, 493 U.S. 182, nor with the Eleventh Circuit’s

ruling in the instant case. See Appendix I(a). Jaffee

involved a police officer who was being sued under state

law for wrongful death due to her use of excessive force

in fatally shooting an individual. 518 U.S. at 5, 116

S.Ct. 1923. The plaintiffs there sought notes from a

psychotherapy counseling session that the police officer

had participated in. Jd. The psychotherapy sessions did

not, however, form the basis of the underlying claim of

excessive force. Jd. There was thus a compelling reason

to recognize the psychiatrist-patient privilege and the

6

Court found this privilege more important than

assisting that plaintiff in proving her wrongful death

case. This fact is a critical distinction.

In Univ. of Penn, 493 U.S. 182, 110 S.Ct. 577, on

the other hand, a professor alleged she was denied

tenure due to racial and sexual discrimination within

the University peer review process. The University

argued that the Court should recognize a peer review

privilege within the University process which, it

asserted, was “necessary to protect the integrity of

the peer review process, which in turn is central to

the proper functioning of many colleges and universi-

ties.” Id. at 189.

This Court rejected that argument and expressly

declined to extend the peer review privilege to that

discrimination case, as it found that the costs associ-

ated with discrimination far outweighed the costs

associated with the disclosure of peer review informa-

tion. Jd. at 193. Of particular import in that case was

this Court’s reasoning that because it was alleged

that the discrimination actually occurred within the

peer review process, itself, the discovery of same was

especially relevant. Id.

The two cases thus do not create a conflict. Had

they done so, this Court would have expressly over-

ruled Univ. of Penn., which it did not. This Court

aptly noted that where discrimination occurs within

the peer review process, itself, the privilege must fail.

In Jaffee, however, where the reason for seeking privi-

leged material does not occur within the privileged

7

process itself, the Courts must be guided by a laundry

list of factors before recognizing an important privi-

lege. 518 U.S. 1. This broader list takes into account

whether a privilege generally “promotes sufficiently

important interests to outweigh the need for proba-

tive evidence.” 518 U.S. at 9-10.

Petitioners suggest that the Eleventh Circuit

Court of Appeals’ decision in the instant matter

somehow conflicts with this Court’s reasoning in

Jaffee. 518 U.S. 1. Petitioners assert that Jaffee

expressly rejected a “case by case” analysis to deter-

mine the recognition of a state privilege under federal

law. The Eleventh Circuit did not, however, deviate

from the rule enunciated in Jaffee. 518 U.S. 1. Its

limited holding was simply that the peer review

privilege would not apply in a federal case based upon

discrimination within the peer review process, itself.

See Appendix 1(a). The Eleventh Circuit found, like in

Univ. of Penn., 493 U.S. 182, that eradicating dis-

crimination was a.more compelling reason to decline

recognition of the peer review privilege than the need

for confidentiality of documents. Thus, as required by

Jaffee, the Eleventh Circuit provided a “forward looking

test.” 518 U.S. at 13. Every participant will know

moving forward that the peer review privilege will not

be recognized in a federal discrimination case.

The mischief sought to be avoided in Jaffee was

the uncertainty created by a “case by case” analysis of

whether to recognize a privilege under federal law.

518 U.S. 1. The Eleventh Circuit did not create a rule

by which a case by case analysis will be conducted. It

8

merely held that in all cases of discrimination within

the peer review process itself, the peer review privi-

lege shall not be recognized. See Appendix 1(a). Nor

did the Eleventh Circuit suggest the peer review

privilege would never apply in another type of case,

such as where a party seeks peer review documenta-

tion to support an underlying case which does not

involve discrimination witl..n the process itself, which

was, in fact, the situation in Jaffee. 518 U.S. 1.

Likewise, as outlined in Univ. of Penn., where

discrimination occurs within the peer review process

itself, and where the interests to be weighed are

promoting healthcare or eradicating invidious dis-

crimination, the interests in eradicating discrimina-

tion must prevail. 493 U.S. 182. Further, supporting

minority physicians’ ability to practice medicine in

our countries’ hospitals is a benefit worth promoting

in order to assist in quality of healthcare to our

citizens,

Because there is no conflict between the Eleventh

Circuit’s decision or this Court’s cases, Petitioners

have not presented a sufficient reason for this Court

to hear this matter.

II.

There Does Not Exist A Split In Any Circuit

Regarding This Issue Thus Resolution Is

Not Required By This Court At This Time

Petitioners argue that there is a split in our

nations’ Circuit Courts which warrant this Court’s

9

consideration. They base this “split” solely upon the

decision in United States v. Harris Methodist Ft.

Worth, 970 F.2d 94 (5th Cir. 1992). However, that case

is not on point, creates no split in the Circuits and

was premised on a different issue than the medical

peer review privilege.

In Harris, the Department of Health and Human

Services (“HHS”), a governmental agency, attempted

to conduct a Title VI compliance review of a hospital

chosen at random. 970 F.2d at 96. In attempting to

conduct said review, HHS requested peer review

materials on every physician at the hospital. Jd. HHS

argued that it was permitted to conduct an “adminis-

trative search” under Title VI of the Civil Rights Act

as the hospital received federal funds. Jd. It further

argued that because the hospital had executed com-

pliance assurance documents, it had consented to the

administrative search. Id.

The Fifth Circuit Court of Appeals held that

whether or not the administrative search could be

conducted (and whether there was consent to same)

was based on the objective reasonableness standard

outlined by the Fourth Amendment. Jd. at 100. Thus,

only if the search was “reasonable” would it be per-

missible under Title VI. Id.

The Court found because the particular hospital

was selected arbitrarily, without any guidelines and

that the decision was made by a field officer with

unreviewed discretion, that it was an unreasonable

search under the Fourth Amendment. Jd. at 101-02.

10

The Court thus declined to permit HHS to conduct

the requested administrative search and found that

any “consent” to the search did not trump the unrea-

sonableness standard. Id.

The only portion of the Harris decision which

dealt with the medical peer review privilege aspect of

the case, expressly held that “HHS cannot adminis-

tratively override the goal of Congress in enacting the

Health Care Quality Improvement Act, 42 U.S.C.

§§11101, 11137(b).” Jd. at 103. The Court went on to

hold that “because we affirm the district court’s

determination that the proposed search exceeded

bounds of reasonableness, we need not define the

scope of any applicable privilege.” Jd.

Thus, because Harris analyzed an administrative

search under Title VI and under the Fourth Amend-

ment, and because it expressly failed to reach a

decision regarding the medical peer review privilege,

it simply creates no split in any Circuit in the United

States dealing with this issue. The court in Harris

addressed the privilege only in passing and based its

holding on other grounds. /d.

Contrarily, of all of the Circuit Courts of Appeals

which have decided whether or not the medical peer

review privilege is applicable in a civil. rights action

alleging discrimination (within the peer review

process itself) the decisions are unanimous. Each

Circuit reviewing this issue has found that the privi-

lege must fail in these types of cases.

11

For example, in Virmani v. Novant Health, Inc.,

259 F.3d 284 (4th Cir. 2001) the Fourth Circuit indi-

cated that “in contrast to a discrimination case, in

which the plaintiff’s claim arises out of the peer

review proceedings, a plaintiff’s claim in a medical

malpractice case arises from actions that occurred

independently of the review preceedings.” The Fourth

Circuit indicated that there is no evidence that state

legislatures considered the potential impact on dis-

crimination cases of a privilege for medical peer

review proceedings. Thus, the state’s policy decisions

reflected different concerns than those implicated in a

discrimination case. Jd. This is particularly salient

since discrimination claims pursuant to Title VII and

42 U.S.C. §1983 are peculiar to the federal arena and

are not typically adjudicated in state courts.

Likewise, in Memorial Hosp. for McHenry County

v. Shadur, 664 F.2d 1058 (7th Cir. 1981), the Seventh

Circuit failed to recognize a medical peer review

privilege in an antitrust action which alleged a physi-

cian was discriminated within the peer review proc-

ess itself. The Court held that unlike in “the context

of a medical malpractice claim [failing to recognize a

privilege] will have little impact on 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 plain-

tiff.” Jd. at 1061.

In the Eleventh Circuit below, the privilege was

also denied on the same rationale utilized in Univ. of

12

Penn., 493 U.S. at 193 and the Fourth Circuit’s analy-

sis in Virmani, 259 F.3d at 289. See Appendix I(a).

In fact, even before the instant case was decided,

the district court in the Middle District of Georgia

declined to recognize a medical peer review privilege

in a discrimination claim requiring peer review

documents to be turned over to a plaintiff-physician

who alleged he had been discriminated against by the

peer review committee. See Marshall v. Americus-

Sumter County Hosp. Authority, 2002 U.S. Dist.

LEXIS 26822 (S.D.G.A.).

It is thus clear that there are three (3) Circuit

Courts of Appeals that have decided this issue, all of

which declined to recognize the medical peer review

privilege within the context of a discrimination claim

arising from discrimination within the peer review

process itself.

There is simply no split in the Circuits arising

which makes the resolution of this matter ripe for

this Court at this time.

Of further note is the fact that the majority of

district courts have likewise ruled against recognition

of the medical peer review privilege. See, e.g., EEOC

v. Franklin & Marshall Coll., 775 F.2d 110, 116 (3rd

Cir. 1985) (peer review subject to discovery when

discrimination alleged within the process); Marshall

uv. Spectrum Med. Group, 198 F.R.D. 1, 5 (D. Me.

2000) (declining to recognize privilege in discrimina-

tion suit brought pursuant to Americans with Dis-

abilities Act); Holland v. Muscatine Gen. Hosp., 971

13

F. Supp. 385, 390 (S.D. Iowa 1997) (declining to

recognize privilege in Title VII claim); Johnson v.

Nyack Hosp., 169 F.R.D. 550, 561 (S.D.N.Y. 1996);

Robertson v. Neuromedical Ctr., 169 F.R.D. 80, 83-84

(M.D. La. 1996); Lemasters v. Christ Hosp., 791

F. Supp. 188, 191 (S.D. Ohio 1991); Wei v. Bodner, 127

F.R.D. 91, 101 (D.N.J. 1989).

Some districts refer to the peer review privilege

as the “self critical analysis privilege” or the “self

analytical privilege” however it remains the same in

substance. A majority of these district courts have

likewise refused to honor it in discrimination cases

such as the instant matter. See, e.g., Johnson uv.

United Parcel Service, Inc., 220 F.R.D. 686 (M.D. Fla.

2002). Indeed, the U.S. District Court for the South-

ern District of Ohio indicated that

while some cases discuss a “self-critical

analysis” privilege, and others discuss a

“peer review privilege” the two concepts stem

from the same trunk. Some courts note a dis-

tinction between the two, others do not. The

“self-critical analysis” is merely a way of de-

scribing, for example, a hospital’s regular re-

view, or evaluation, of its own in-house

practices, and the work of its care-givers. It

is, in other words, a more broadly focused, or

generalized variant of peer review, which it-

self tends to be case-specific.

Nilvar v. Mercy Health Sys., 210 F.R.D. 597, 604, n.12

(S.D. Ohio 2002).

14

Regardless of the term utilized, the basic privi-

lege and the analysis regarding its application to

federal discrimination cases remains the same. See,

e.g., Bell v. Woodward Governor Co., 2004 U.S. Dist.

LEXIS 1052 (N.D. Ill., Jan. 26, 2004), Melendez v.

Greiner, 2003 U.S. Dist. LEXIS 19084 (2nd Cir. Oct.

22, 2003); Johnson, 220 F.R.D. 686 (M.D. Fla. 2002);

Leon v. County of San Diego, 202 F.R.D. 631 (S.D.

Cal. 2001); Lizotte v. New York City Health And

Hospitals Corp., 1989 U.S. Dist. LEXIS 14114 (S.D.

N.Y. 1989); Anderson v. Marion County Sheriff’s

Dept., 220 F.R.D. 555, 561 (S.D. Ind. 2004) (holding

“the deliberative process privilege is unavailable

where, as here, the plaintiff alleges discrimination

under 42 U.S.C. §1983”); Sonnino v. Univ. of Kansas

Hosp. Auth., 220 F.R.D. 633, 644-645 (D. Kan. 2004)

(holding “neither the Supreme Court nor the Tenth

Circuit has recognized a medical peer review or medi-

cal risk management privilege under federal common

law ... nearly all of the cases that have weighed the

state-law medical peer review privilege against the

interests advanced by the federal anti-discrimination

laws have concluded that the privilege does not pre-

clude discovery of peer review materials”).

In sum, cases emanating either from the district

trial courts or the Circuit Courts of Appeals from the

First, Second, Third, Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth, Tenth, and now Eleventh Circuits

have all declined to recognize a medical peer review

privilege in the context of a federal discrimination

claim.

15

This Court thus need not hear this matter at this

time, as an overwhelming majority of district courts

and all three (3) of the Circuit Courts of Appeals

hearing the issue are not in conflict.

III.

Congress Has Already Addressed

this Issue by Way of the Health Care

Quality Improvement Act

In 1986 (as revised in 1989) Congress enacted the

Health Care Quality Improvement Act (“HCQIA”) in

order to provide immunity from damages to individu-

als participating in professional review committees

provided certain conditions are met. 42 U.S.C. §11111

et seq. An important exception to that act is relevant

herein.

For example, the Act specifically exempts from

its provisions “damages under any law of the United

States or any State relating to the civil rights of

any person or persons, including the Civil Rights

Act of 1964, 42 U.S.C. §2000e, et seg. and the Civil

Rights Acts, 42 U.S.C. §1981 et seg.” See 42 U.S.C.

§11111(a)(1)(D).

It is thus clear that Congress specifically consid-

ered discrimination actions brought within the con-

text of the peer review process itself and decided to

expressly exempt them from the Act’s purview. It is a

basic rule of statutory construction that if something

is expressly mentioned, the inference is stronger that

those portions omitted were intended as such, than if

16

nothing at all was mentioned. See O.C.G.A. 50-21-20;

DHR v. Hutchinson, 217 Ga. App. 70, 456 S.E.2d 642

(1995).

Although Petitioner argues that the HCQIA

merely immunizes a peer review participant from

damages, but does not speak to whether or not confi-

dential documents are discoverable, this argument is

displaced. For example, it has been held that the

HCQIA did not apply, and could not be construed as

limiting discovery of peer review documentation

in civil rights cases. See Lemasters v. Christ Hosp.,

791 FSupp. 188 (S.D. Ohio 1991); Braswell v.

Haywood Regional Medical Center, 352 F. Supp.2d

639 (W.D.N.C. 2005); Azeez P. Adeduntan v. Hosp.

Auth. Of Clarke County, 2005 WL 204248 (M.D.G.A.)

(holding HCQIA does not bar peer review from disclo-

sure in those cases where the peer review process

itself is at issue.).

Petitioners argue that Representative Waxman

(a sponsor of the House Bill) specifically addressed

discovery of peer review documentation by stating, “I

understand there are a number of State shield laws

that restrict the type of evidence that may be intro-

duced in lawsuits challenging a disciplinary action in

the context of peer review. Nothing in this bill is

intended to preempt or override any such State shield

law.” See 132 Cong. Rec. 33,177.

Although it cannot be determined that the neces-

sary votes in both the House and the Senate agreed

with such commentary, Representative Waxman was

17

expressly referring to the State shield laws which

restrict discovery in malpractice actions against

physicians and not the type of situation presented

here. Had he been referring to same, there would not,

of course, be a clear exemption for Civil Rights cases

contained in the statute itself.

To that end, as Congress has already spoken on

the issue, there is no need for this Court to review

this claim unless and until Congress amends the Act.

IV.

State Peer Review Laws Create An

Exception For Immunity Where

Participants Act With Malice Or Bad Faith

Petitioners argue that effective (and confidential)

medical peer review is essential to providing the

public with quality healthcare. Certainly, it cannot be

denied that peer review serves an important function

in our society. It promotes effective supervision of

healthcare professionals and treatment of those

physicians in need of instruction or rehabilitation in

terms of their practice performance.

However, medical peer review committees are a

creation of statute and must be strictly construed and

not extended beyond their spirit and “precisely stated

limits.” McCall v. Henry Medical Center, 250 Ga. App.

679, 551 S.E.2d 739 (2001).

18

Although virtually every state has enacted

statutes providing for either immunity from lawsuits

to peer review participants and/or confidentiality of

the peer review documents, most of those same

statutes provide an exception for participants who act

with malice, fraud or bad faith within the process,

itself, See, e.g., O.C.G.A. §31-7-133 (Georgia); M.C.L.

331.531 (Michigan); LSA-R.S. 13.3715.3 (Louisiana)

and similar statutes in Pennsylvania, Maryland,

Texas, New York, New Jersey, Oklahoma, California,

Missouri and Tennessee, to name a few.

It is thus apparent that even within the state

peer review confidentiality statutes, it is recognized

that actions taken with malice towards a physician

will exempt the participant from immunity. Certainly,

there can be no greater malicious act than invidious

discrimination, whether it be based upon race, na-

tional origin or gender. This is especially so when

minority physicians of all sorts have consistently

assisted our healthcare systems in valuable ways.

In fact, it is a recognized fact that “sham” peer

review processes have begun in our country where

the confidentiality and privileges associated with peer

review are utilized to rid hospitals of physicians for the

hospitals’ improper motives. See Hutton, Lawrence R.,

Sham Peer Review: A National Epidemic, Association of

American Physicians and Surgeons, Inc. (2006).

Thus, Petitioner’s argument that because all

states recognize a peer review privilege under state

law that this Court must likewise do so is simply not

19

a basis for this Court’s review. As nearly all states

have carved out an exception for malicious behavior

within the process, itself, the Eleventh Circuit’s

opinion is thus in accordance with the states’ policies.

V.

An Exception To The Peer Review Privilege

Will Have No Substantial Effect On

Those Participants Acting In Good Faith

And Failing To Discriminate

Admittedly, it is important to the quality of

health care to keep peer review documentation and

discussions confidential. However, there is a distinc-

tion which Petitioners fail to address regarding the

quality of care benefits derived from the existence of

medical peer review, itself, and one of the compelling

reasons for requiring actual peer review documents

be completely privileged from disclosure. The distinc-

tion is between medical peer review and the medical

peer review privilege.

Medical peer review committees themselves were

created in order to provide peer-to-peer teaching

mechanisms and to ferret out physicians who failed to

meet proper standards of care. However, the confi-

dential nature of said proceedings and privilege from

disclosure of all documents/communications therein

were created, in large part, to allow participants to

speak candidly about another’s performance and to

prevent a potential state medical malpractice plaintiff

from obtaining the documentation in order to prove a

20

breach of the standard of care. See Eubanks v. Fer-

rier, 245 Ga. 763, 267 S.E.2d 230 (1980). In that case

it was held that denying a malpractice patient access

to the records was not a violation of either due proc-

ess or equal protection. Jd. See also Hollowell v. Jove,

247 Ga. 678, 680, 279 S.E.2d 430, 432-33 (1981)

(“(t]he statute legislatively approves the view that

[clonstructive criticism cannot occur in an atmos-

phere of apprehension that one doctor’s suggestion

will be used as a denunciation of a colleague’s conduct

in a malpractice suit” citing Bredice v. Doctor’s Hospi-

tal, Inc., 50 F.R.D. 249, 250 (D.C. 1970).

Petitioners argue that by failing to recognize a

medical peer review privilege in the limited context of

civil rights claims alleging discrimination within the

peer review process itself will “eviscerate” the public

health benefits provided by such peer review. They

argue that physicians will not participate in peer

review if they know that their comments and/or

documents are discoverable. In support of this argu-

ment they point to one small, rural county in western

Georgia. Petitioners miss the point, however. If

physicians do not act with discriminatory animus in

the peer review proceedings, they have nothing to

worry about. The exception carved out is a narrow

one indeed and will not subject disclosure of docu-

mentation which can be used by the public to support

malpractice actions to which the physicians must be

concerned. All they need do is to refrain from dis-

crimination.

21

As aptly noted in Blaubergs v. Board of Regents

of the University System of Georgia, 661 F.2d 426 (5th

Cir. Unit B 1981)

Persons occupying positions of responsibility

... often must make difficult decisions. The

consequence of such responsibility is that oc-

casionally the decision-maker will be called

upon to explain his actions. In such a case,

he must have the courage to stand up and

publicly account for his decision. If that

means that a few weak-willed individuais

will be deterred from serving in positions of

public trust, so be it; society is better off

without their services. If the decisionmaker

has acted for legitimate reasons, he has

nothing to fear. We find nothing heroic or no-

ble about the appellant’s position, we see

only an attempt to avoid responsibility for

his actions.

Id. at 482.

Likewise here, so long as the decision-makers do

not act with discriminatory animus, then they should

not object if their decisions or discussions are ques-

tioned in a federal civil rights lawsuit. In fact, such

documentation would most likely support their ar-

gument that no such discrimination occurred. To that

end, physicians will not realistically be “chilled” from

participating in medical peer review committees.

22

In fact, pursuant to Georgia Statuies, O.C.G.A.

§37-5-1, the appointment of peer review groups and

compliance therewith is required for the granting or

renewing of a hospital’s license. Thus, physicians

will be required to continue to serve on committees,

and like all public agencies, will be subject to anti-

discrimination requirements.

Failing to exempt the privilege in federal dis-

crimination cases will only have a chilling effect on

“closed-door” discrimination sessions. If this occurs, it

is certainly a chilling effect worth promoting and one

that comports with over 40 years of federal jurispru-

dential efforts to eradicate invidious discrimination.

See Title VII of the Civil Rights Act, 42 U.S.C.

§2000(e) et seq.

Certainly, then, Petitioners’ “parade of horribles”

that the entire system of quality health care in our

country will be chilled is not realistic and does not

serve as a compelling reason for this Court to review

this case.

23

CONCLUSION

For all of the foregoing reasons, the Petition for

Writ of Certiorari should be denied.

Respectfully submitted,

ALTHEA L. BUAFO

Counsel of Record

BERNADETTE C, CRUCILLA

BuAFO & ASSOCIATES

P.O. Box 4012

201 Spring Street

Macon, Georgia 31208

(478) 743-8337