Wisconsin district court orders hospital to hand over peer review documents
The U.S. District Court for the Eastern District of Wisconsin (the "Court") ordered a hospital to comply with a subpoena served by the U.S. government to produce documents relevant to an ongoing federal investigation.
In its decision, the Court followed the predominant view of federal courts that state peer review statutes will not preclude federal subpoenas of peer review materials absent unique and compelling circumstances, such as in actions that in effect allege malpractice.
The government subpoenaed Aurora Health Care (the "Hospital") for the documents in the course of conducting an investigation into whether the Hospital knowingly submitted false reimbursement claims to federal healthcare programs. The Hospital produced some of the requested documents but withheld many, claiming they were protected by Wis. Stat. § 146.38, which prohibits disclosure of information relating to the review or evaluation of healthcare providers. The government contended that the Hospital couldn't rely on a state statute to withhold documents relevant to a federal investigation alleging healthcare fraud.
The Court held that recognizing the privilege would deny the government "access to evidence that might reveal that federal healthcare programs have been defrauded" by the Hospital.
The Court explained that physicians who participate in the peer review process know that under certain circumstances their comments or actions can be disclosed. It added that the U.S. Court of Appeals for the Seventh Circuit has allowed the release of peer review files in certain circumstances since an action in 1981 "alleging that the peer-review process itself was used to facilitate federal antitrust violations." The Court explained that "[I]f physicians know that their comments or actions during peer review could be used to support an antitrust claim against their hospital or colleagues, what difference will it make if they also know that their comments or actions could be used to prove that their hospital or colleagues have submitted false claims to federal healthcare programs?"
Furthermore, the Court noted that Wis. Stat. § 146.38(3)(a) allows healthcare access to peer review materials to providers who are being reviewed or evaluated, meaning that participants in the process already have reason to fear that a colleague could discover any negative comments they make.
The Hospital also argued that if it were compelled to produce the documents protected by the state peer review privilege, it could face liability under state peer review law, which provides that "[a]ny person who discloses information or releases a record in violation of this section, other than through a good faith mistake, is civilly liable therefor to any person harmed by the disclosure or release." The Court summarily rejected this theory on the grounds that any such suit would not only fail but would be rendered "frivolous" by virtue of the Supremacy Clause of the United States Constitution.