In Morshed v. St. Barnabas Hosp., No. 16 CIV. 2862 (LGS), 2017 WL 543236 (S.D.N.Y. Feb. 10, 2017), the court overruled defendants’ claims that ten documents were “privileged under the self-critical analysis privilege, peer review privilege and quality assurance privileges.”[1]Specifically, defendants asserted the following as grounds for their assertion of privilege: Rule 501 of the Federal Rules of Evidence; Rule 26 of the Federal Rules of Civil Procedure; the peer review privilege and quality assurance privilege; N.Y. Public Health Law § 2805-m; N.Y. Education Law § 6527; the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 1111; the Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-21 to b-26; the critical self-analysis privilege; and N.Y. Comp. Codes R. & Regs. tit. 10, § 405.4.
In this case, plaintiff alleged that he was subjected to discrimination and a hostile work environment on account of his age, religion, race and national origin.
The documents at the center of this dispute
include emails between and among physicians who supervised and evaluated Plaintiff during his residency, discussing Plaintiff’s performance in the residency program; hospital preceptor evaluations of Plaintiff; an evaluation of Plaintiff’s performance in one of his rotations; a New York College of Osteopathic Medicine Educational Consortium Annual Trainee Assessment for Plaintiff; and an email from a medical placement company requesting a reference from the St. Barnabas hospital for Plaintiff.
First, the court held that the privileges asserted under New York Education Law § 6527 and Public Health Law § 2805-m were “inapplicable” since “[t]his action is brought pursuant to both federal civil rights laws and state and city human rights laws[ and c]ourts consistently have held that the asserted privileges are governed by the principles of federal law where the action is in federal court and the evidence sought is relevant to both federal and state law claims.”
Next, the court rejected defendants’ attempt to have it recognize (under Federal Rule of Evidence 501) a peer review privilege, quality assurance privilege, and self-critical analysis privilege recognized by state law.
The court applied a “balancing test to determine claims of privilege based on state laws and where no federal rule governs the privilege asserted” which involves balancing the following four factors:
1) the need for the information to enforce federal substantive and procedural policies; 2) the importance of the state policy that supports the rule of privilege and the likelihood that recognizing the privilege will advance the state policy; 3) the special need of the litigant who seeks the information; and 4) and adverse impact on local policy if the privilege is not recognized.
Applying the law, the court held:
The Supreme Court arguably has already determined that a federal peer review privilege does not exist. In University of Pennsylvania, the Court held that neither the federal common law nor the First Amendment warranted the recognition of a peer review privilege over the tenure review files in an employment discrimination case.
Defendants also argue that recognition of a federal privilege will support important federal policy interests, namely promoting public safety through quality assurance and peer review. Defendants’ citation to federal laws—the HCQIA and the PSQIA—does not aid their argument. In enacting the HCQIA, Congress did not create a privilege for medical peer review, despite recognizing the need to incentivize physicians to engage in effective professional peer review and granting officials who conduct peer reviews qualified immunity where statutory standards are met. Also, the HCQIA specifically denies immunity under the Civil Rights Act for participants in peer review proceedings. Rather than supporting recognition of the privilege, the passage of HCQIA shows that Congress accorded more weight to vindication of civil rights than to the interests in the confidentiality of the peer review process. For these reasons, the HCQIA does not provide a basis to recognize a peer review privilege here. …
The PSQIA also affords no basis for application of a privilege to the ten documents at issue. The PSQIA creates a federal privilege for any data, reports, records, memoranda, analyses (such as root causes analyses), or written or oral statements that a health care provider assembles and reports to a patient safety organization. Defendants do not argue that the PSQIA is applicable by its terms, rather appear to argue that the PSQIA, like the HCQIA, lends support to the federal recognition of a peer review privilege because it encourages a culture of safety and quality by providing confidentiality. Here too, Congress’ refusal to recognize a peer review privilege cautions against judicial recognition of the privilege.
In applying the [four-factor] balancing test … to this case, Plaintiff’s need for the documents to enforce an important federal substantive policy outweighs any theoretical chilling effect that disclosure would have on critical analysis of physician performance. Plaintiff asserts that he was subjected to discrimination and a hostile work environment on account of his age, religion, race and national origin. The emails and evaluations submitted in camera that Defendants seek to protect from disclosure are relevant to Plaintiff’s discrimination case. For the same reasons, Defendants have not shown that the burden of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1).
| ↩1 | Specifically, defendants asserted the following as grounds for their assertion of privilege: Rule 501 of the Federal Rules of Evidence; Rule 26 of the Federal Rules of Civil Procedure; the peer review privilege and quality assurance privilege; N.Y. Public Health Law § 2805-m; N.Y. Education Law § 6527; the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 1111; the Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-21 to b-26; the critical self-analysis privilege; and N.Y. Comp. Codes R. & Regs. tit. 10, § 405.4. |
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