Malpractice Plaintiff Obtains Peer Review Records

A United States District Court has decided that malpractice plaintiffs seeking recovery pursuant to the Federal Tort Claims Act are entitled to obtain hospital peer review records, regardless of state immunity laws. In Vezina vs. United States of America, the Plaintiff brought suit for personal injuries, allegedly suffered while being treated by a physician employed by the Department of Health and Human Services and the Southwest Louisiana Center Health Services Clinic, and Women’s and Children’s Hospital. The Plaintiff sought discovery of the hospital’s peer review records and the hospital filed a motion to quash. The court concluded that, since the action was founded upon the Federal Tort Claims Act and federal common law would apply, which recognizes no peer review privilege, that the requested peer review records should be produced pursuant to a protective order.

The court held that the Louisiana State peer review immunity and confidentiality statute did not apply to actions brought pursuant to the Federal Tort Claims Act.

The hospital had also asserted that confidentiality pursuant to the Healthcare Quality Improvement Act ("HCQIA") and HIPAA, the court, citing earlier decisions named in the text of the opinion, concluded that HCQIA provides immunity for production of peer review records and confidentiality protection for the reports submitted to the National Practitioners’ Data Bank, but otherwise provided no additional confidentiality protection. With respect to HIPAA, a court concluded that HIPAA did not protect or prevent the production of non-party patient information so long as the information was provided in accordance with the protective order as required by HIPAA. 

Although the holding of the case is limited to malpractice claims brought pursuant to the Federal Tort Claims Act, the preemption of the state confidentiality and peer review protection acts by federal common law in federal causes of action should be meaningful in other cases founded upon federal statutes.$File/vez.pdf