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

MOTION FILED

NOV 2 1 2007 No. 07-538

q’) Su The

Supreme Court of the Gnited States

®

ARTHUR P. CHRISTIE, ANTHONY L. ALFORD, DANIEL

A. 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., AND 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

¢

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE; AND BRIEF AMICUS CURIAE

OF THE JOINT COMMISSION

IN SUPPORT OF PETITIONERS

¢

HAROLD J. BRESSLER

Counsel of Record

ILA S. ROTHSCHILD

THE JOINT COMMISSION

One Renaissance Boulevard

Oakbrook Terrace, Illinois 60181

(630)792-5672

Attorneys for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

1

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Petitioners Arthur P. Christie, et al. (“Petition-

ers”) have consented to the filing of this brief by

amicus curiae The Joint Commission. Because the

Respondent, Russell E. Adkins, M.D. (“Respondent”),

has withheld consent, The Joint Commission hereby

moves, pursuant to Supreme Court Rule 37.2(b), for

leave to file an amicus curiae brief in support of

Petitioners. )

The Joint Commission is a private not-for-profit

tax exempt 501(c)(3) corporation. It is governed by a

29-member Board of Commissioners that currently

includes physicians, administrators, nurses, a labor

leader, quality experts, an ethicist, a consumer pa-

tient safety advocate, and educators. The Board of

Commissioners brings to The Joint Commission

diverse experience in health care, business and public

policy. The Joint Commission’s corporate members

are the American College of Physicians, the American

College of Surgeons, the American Dental Associa-

tion, the American Hospital Association, and the

American Medical Association. The Joint Commission

is the nation’s oldest and largest health care stan-

dards setting and accrediting body for health care

organizations in this country.

The sole mission of The Joint Commission is to

help enhance the quality and safety of health care

through the provision of health care accreditation and

2

related services. In pursuit of this mission, The Joint

Commission promulgates standards it believes health

care organizations should meet to facilitate the

provision of safe, high quality care, and surveys

health care organizations for compliance with those

standards. The Joint Commission accredits more

than 14,000 health care organizations and programs

in, the United States, including hospitals and other

health care organizations that provide home care,

long term care, behavior health care, laboratory, and

ambulatory care services.

Amicus participation is governed by Rule 37.

Rule 37(1) states that “relevant matter not already

brought to its attention by the parties may be of

considerable help to the [Supreme] Court.” As the

nation’s premier health care accrediting body, The

Joint Commission is in a unique position to lend

insight into the importance of the peer review process

and the application of a privilege to that process in

the health care setting. Because of its mission and

the nature of its nationwide work, The Joint Commis-

sion has an interest in the application of the medical

peer review privilege at the federal level and is di-

rectly affected by the Eleventh Circuit Court’s deci-

sion.

The Joint Commission has repeatedly expressed

its view that the confidentiality of peer review activ-

ity is critical if the safety of patient care is to be best

protected and the quality of care is to be best en-

hanced. In this regard, any threat to consistency in

the application of peer review statutes is of great

3

concern. The Joint Commission thus wishes to submit

this brief to illustrate the impact of the Eleventh

Circuit Court’s decision on the health care industry.

Given the ramifications of this case on The Joint

Commission’s work, it respectfully requests leave to

file the attached brief amicus curiae in support of

Petitioners’ request that this Court hear this case.

Respectfully submitted,

HAROLD J. BRESSLER

Counsel of Record

ILA S. ROTHSCHILD

THE JOINT COMMISSION

One Renaissance Boulevard

Oakbrook Terrace, Illinois 60181

(630) 792-5672

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

I. INTEREST OF AMICUS CURIAE ........... 1

II. SUMMARY OF ARGUMENT.................... 3

ahs CEE eit habia Adaxtondcncdssceeseuiewers 4

A. HEALTH CARE REGULATION, IN-

CLUDING DETERMINING THE

VALUE OF PEER REVIEW, IS LEFT

TO THE STATES AS PART OF

THEIR POLICE POWERG.................. 4

B. CONFUSION REMAINS IN PEER

REVIEW ANALYSES BY FEDERAL

NEE isda covrlanitedubapacvescienunrtenvonotestns 7

Re. PET ba viinccnctcanrskcaninsteciosnntiionoedans 8

ii

TABLE OF AUTHORITIES

FEDERAL CASES

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

Gonzalez v. Oregon, 546 U.S. 243 (2006).............ccccee

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

Medronic, Inc. v. Lohr, 518 U.S. 470 (1996)................

Metropolitan Life. Ins. Co. v. Massachusetts,

Ee Bee FORO OD siicsisnevcdvunnciscitesincerneaianvanedsinnitens

STATE CASES

Claypool v. Mladineo, 724 So.2d 373 (Miss.

Cobb County Kennestone Hosp. v. Prince, 242

Ga. 120, 249 B.2..26 B66 (1907S) oi... -csseccsersesossersveresss

Daily Gazette Co. v. West Va. Bd. of Med., 177

W.Va. 316, 352 S.E.2d 66 (1986) .......sssssscessseesesseees

Hughes v. State Bd. of Med. Examiners, 162

5. FOG, TIE BiB, BB ID os vnccsticccisncnscepecseserovvsvenace

Jenkins v. Wu, 102 Ill.2d 468, 468 N.E.2d 1162

ci icckaniebonesing

Moretti v. Lowe, 592 A.2d 855 (R.1. 1991) ..................

People v. Ray, 119 Ill.App.3d 180, 456 N.E.2d

BO A atest ivaternsdnidncsatiesecstasnainenaeiatduersantesneievionsens

Rios v. Jones, 63 I\l.2d 488, 348 N.E.2d 825

EMA UED cicalicicaycalsndaniddedtoiincdisvtensiaeamonbiaieatedadiamaainooaa at

lil

TABLE OF AUTHORITIES ~- Continued

Yeargin v. Hamilton Mem'l Hosp., 225 Ga. 661,

171 S.E.2d 136 (1969)

Young v. Saldanha, 189 W.Va. 330, 431 S.E.2d

669 (1993)

FEDERAL STATUTES AND RULES

42 U.S.C. § 1395bb

I ag (ITIP A a5 is chen tnulsodidinwsorenesbauebeonsgnbiedeammeiipanibidh 1

Sup. Ct. R. 37(2)b)

STATE STATUTE

Ga. Code Ann. §§ 88-1801 et seq, ...........ccececeeceeeneeeeeees 6

OTHER AUTHORITIES

Dorothy Duffy & Martha C. Romney, Medicine

and Law: Recent Developments in Peer Re-

view and Informed Consent, 26 Tort & Ins. L.

J. 331 (1991)

Hospital Accreditation Standards, Joint Com-

mission on Accreditation of Healthcare Or-

ganizations (2007)

Miles J. Zaremski & Louis S. Goldstein, Medi-

cal and Hospital Negligence (Callaghan

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BRIEF OF THE JOINT COMMISSION

AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

This amicus curiae brief is submitted on behalf of

The Joint Commission.’ Petitioners have consented to

The Joint Commission’s filing of this brief. The Re-

spondent has withheld consent. A motion for leave to

file an amicus curiae brief under Supreme Court Rule

37(2)(b) is included with this brief. The correspon-

dence regarding The Joint Commission’s requests for

consent have been filed in the Office of the Clerk.

I, INTEREST OF AMICUS CURIAE

The Joint Commission evaluates and_ accredits

more than 14,000 health care organizations and

programs in the United States. An independent, not-

for-profit organization, The Joint Commission is the

nation’s predominant standards-setting and accredit-

ing body in health care. Since its inception in 1951,

The Joint Commission has maintained state-of-the-

art standards that focus on improving the quality and

safety of care provided by health care organizations.

The Joint Commission’s comprehensive accreditation

process evaluates an organization’s compliance with

these standards and other accreditation require-

ments. Joint Commission accreditation is recognized

' This brief was authored in whole by counsel for The Joint

Commission. No person or entity made a monetary contribution

to this brief’s preparation or submission. See, Sup. Ct. R. 37.6.

2

nationwide as . symbol of quality that reflects an

organization's cu.nmitment to meeting certain per-

formance standards.

Accreditation by The Joint Commission is of

great importance to health care organizations. Among

other reasons, the Medicare Act of 1965, 42 U.S.C.

§ 1395bb specifically provides that hospitals accred-

ited by The Joint Commission, subject to certain

limited exceptions, are deemed to be eligible to par-

ticipate in the Medicare program. Thus, The Joint

Commission plays a key role in the federal govern-

ment’s oversight of reimbursement for health care

services. For one governmental purpose or another,

the vast majority of states recognize Joint Commis-

sion accreditation. :

Hospital medical staffs, pursuant to Joint Com-

mission standards, participate in a “series of activi-

ties designed to collect, verify, and evaluate data

relevant to a practitioner’s professional performance.”

Hospital Accreditation Standards at 371, The Joint

Commission on Accreditation of Healthcare Organiza-

tions (2007). The Joint Commission relies on these

very peer review activities as the basis for accredited

hospitals meeting appropriate medical staff stan-

dards.

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It. SUMMARY OF ARGUMENT

The states have the responsibility to regulate

health care with the purpose of protecting the quality

and safety of care for patients in our nation’s hospi-

tals and health care organizations. One important

method of accomplishing this is for states to enable

physicians to be able to speak openly and candidly

about health care rendered to patients, i.e., to be able

to work together and, pursuant to medical staff

bylaws, provide oversight for the quality of care,

treatment, and services provided by health care

practitioners. Hospital Accreditation Standards at

360, Joint Commission on Accreditation of Healthcare

Organizations (2007). The peer review process and

state laws that encourage peer review are intended to

further this goal. The parties have addressed the peer

review process, and certainly the federal courts have

recognized the importance of peer review. It is the

treatment of this process among state and federal

courts, however, that causes The Joint Commission

considerable concern, because there is a lack of con-

sistency in how state and federal courts view the peer

review privilege. The federal court interpretations

can have the effect of thoroughly undermining a

state’s determinations about the peer review process

intended to further the quality and safety of patient

care in that state. In order to preserve the integrity of

the peer review process, the impact of federal deci-

sions cannot be isolated from the overall impact in

that state.

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Due to the unique position of The Joint Commis-

sion and its insistence in the pursuit of its mission

that accredited organizations should engage in an

effective peer review process, The Joint Commission

respectfully requests this Court to accept certiorari in

order to make clear to its lower federal courts the

importance of this issue. Most notably, there pres-

ently exists a federal public policy against privileges

that is based upon the underlying “ ... maxim that

the public ... has a right to every man’s evidence.”

Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (citations

omitted). This policy is inconsistent with the purpose _

of peer review privileges established by state laws.

Il. ARGUMENT

A. HEALTH CARE REGULATION, _IN-

CLUDING DETERMINING THE VALUE

OF PEER REVIEW, IS LEFT TO THE

STATES AS PART OF THEIR POLICE

POWERS

Notwithstanding its position as a national or-

ganization that accredits health care institutions

nationwide and its relationship with the federal

government, The Joint Commission is fully aware

that the actual regulation of health care is essentially

left to the states. The Joint Commission understands

that this role is generally considered to be a part of a

state’s police power to protect the health and welfare

of citizens within each state. This Court, in fact, has

recognized that states have“... great latitude under

their police powers to legislate as to the protection of

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the lives, limbs, health, comfort, and quiet of all

persons.” Gonzalez v. Oregon, 546 U.S. 243, 270

(2006) citing Medronic, Inc. v. Lohr, 518 U.S. 470, 475

(1996) (quoting Metropolitan Life Ins. Co. v. Massa-

chusetts, 471 U.S. 724, 756 (1985)). What exists in

federal jurisprudence has been a bedrock of state law.

For example, in discussing Illinois’ licensure act for

physicians as prohibiting the practice of medicine

without a license, that state’s appellate court held

such prohibition to be within “[t]he state’s inherent

police power ... to enact reasonable legislation to

secure the public’s health and safety by licensing

physicians.” People v. Ray, 119 Ill.App.3d 180, 183,

456 N.E.2d 179, 182 (1983) citing Rios v. Jones, 63

[ll.2d 488, 348 N.E.2d 825 (1976). Further, Georgia’s

Supreme Court recognized that “[t]he preservation of

public health is one of the duties devolving on the

State as the sovereign power, and the discharge of

this duty is accomplished by means of the exercise of

the inherent police power of the sovereign.” Cobb

County Kennestone Hosp. Authority v. Prince, et al.,

242 Ga. 139, 143, 249 S.E.2d 584 (1978), citing

Hughes v. State Bd. of Med. Examiners, 162 Ga. 246,

256, 134 S.E. 42, 46 (1926); Yeargin v. Hamilton

Mem Hosp., 225 Ga. 661, 171 S.E.2d 136 (1969). In

furtherance of this police power, Georgia’s state

legislature promulgated the Hospital Authorities Law

to provide for the “health and welfare of the commu-

nity... [by] creatling] hospital authorities in order to

promulgate rules and regulations ‘necessary and con-

venient to carry out and effectuate’ their purposes.” Jd.

6

at 144, 249 S.E.2d 584, 585, citing Ga. Code Ann.

§§ 88-1801 et seq.

The states, of course, cannot effectively regulate

health care without a system that incorporates pro-

fessional expertise. Thus, peer review committees are

formed “to evaluate the competence and quality of

care rendered at medical institutions.” Dorothy Duffy

and Martha C. Romney, Medicine and Law: Recent

Developments in Peer Review and Informed Consent,

26 Tort & Ins. L.J. 331 (1991). Medical peer review

committees are essential to assess the competence of

a medical staff and monitor a physician’s perform-

ance. Id. To encourage participation and candor in

that evaluation process, statutory privileges have

been enacted to protect the work of all such commit-

tees. Id.

The peer review process as contained within

state peer review statutes is a critical element of a

state’s regulation of health care. Numerous state

courts have affirmed the importance of peer review,

and have also affirmed that it remains within the

ambit of state peer review protective statutes. In

Young v. Saldanha, 189 W.Va. 330, 334 (1993), the

West Virginia Supreme Court of Appeals recognized

that “West Virginia’s peer review statutes, like those

enacted throughout the country [citing to, 3 Miles J.

Zaremski & Louis S. Goldstein, Medical and Hospital

Negligence, sec. 44A:07 n.1 (Callaghan 1991)] were

put in force ‘with the ultimate purpose of improving

the quality of medical care in ... this state.’ Daily

Gazette Co. v. West Va. Bd. of Med., 177 W.Va. 316,

7

333, 352 S.E.2d 66, 71 (1986).” As examples of all

states that have peer review statutes, the supreme

courts of Illinois, Rhode Island, and Mississippi

similarly recognize that the peer review process is to

ensure and maintain quality of care. Jenkins v. Wu,

102 Ill.2d 468, 482 (1984) (confidentiality of peer

review information “ . improves} health care

within the State); Moretti v. Lowe, 592 A.2d 855, 857

(R.I. 1991) (discovery immunity is to be strictly

construed and limited to its intended purposes; peer

review is to ensure that medical care of high quality

will be available to the public); and Claypool v. Mlad-

ineo, 724 So.2d 373, 385-386 (Miss. 1998) (agrees with

Moretti, and finds peer review is to ensure that

medical care of high quality will be available to the

public, and the public purpose is not served if the

privilege is applied beyond what was intended and

necessary to accomplish the public purpose, and the

purpose the language of the statute was intended to

achieve).

The point The Joint Commission is respectfully

making here is that peer review privileges cannot be

viewed in isolation, but should be viewed as one

critical piece in state regulation of health care.

B. CONFUSION REMAINS IN PEER RE-

VIEW ANALYSES BY FEDERAL COURTS

Hospital engagement in peer review is one of the

foundations of The Joint Commission’s hospital

8

accreditation process. Uncertainty at the federal level

in the application of peer review privilege protection

will compromise the ability of peer review committees

to adequately carry out their work. The Joint Com-

mission’s reliance upon peer review committees will

be undermined, and the quality of care and patient

safety will be adversely affectea.

The appellate court in Adkins v. Christie, 488

F.3d 1324 (11th Cir. 2007) discussed the factors to

consider in deciding whether or not a federal eviden-

tiary privilege should be created. Jaffee v. Redmond,

518 U.S. 1, 10-16 (1996). The Joint Commission

believes there is no question that what the states

have done in enacting peer review privilege statutes

serves the public good and fosters the imperative

need for confidence and trust. By accepting certiorari,

the Court would have the opportunity to make cer-

tain that quality of care and patient safety are not

subservient to federal decisions discouraging privi-

leges. In so doing, this Court also will have the oppor-

tunity to recognize that state law governing peer

review as part of a state’s responsibility to regulate

health care should not be undermined at the federal

level.

Iv. CONCLUSION

The federal courts should not ignore the problem

caused by a lack of consistency in the application of

the peer review privilege. Accepting certiorari will

allow this Court to set forth a solution to a problem in

9

an area that is vital to the quality of care and patient

safety.

Respectfully submitted,

HAROLD J. BRESSLER

Counsel of Record

ILA S. ROTHSCHILD

THE JOINT COMMISSION

One Renaissance Boulevard

Oakbrook Terrace, Illinois 60181

(630) 792-5672