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Peer Review: How Privileged?
How privileged, how impenetrable, is the peer review privilege? In Fox v. Kramer, 22 Cal. 4th 531, 994 P.2d 343 (Cal. 2000), the Supreme Court of California considered this narrow issue: Could plaintiffs Wendy Fox and her husband, Dr. Richard B. Fox, subpoena a doctor to give expert testimony or refer at trial to his draft preliminary report when his conclusions were based on hospital peer review committee records reviewed in the course of his official duties for a public agency? The court concluded that the answer is no; a plaintiff is not permitted to use a subpoena to accomplish indirectly that which is “forbidden directly.” But that did not necessarily mean that all information brought out in medical peer-review committee proceedings was barred from introduction in court.
The plaintiff in Fox was a physician's wife who underwent a colonoscopy procedure under a form of anesthesia known as “conscious sedation,” in which pain- and anxiety-relieving medication is given. The anesthesia does not render the patient completely unconscious, permitting her to express discomfort or change positions. During the procedure, Mrs. Fox experienced pain. She moaned or asked the physicians to wait, or stop a moment; they did so, administered more medication, and after she indicated that it was all right to continue, completed the procedure. The plaintiff recalled afterward that she moaned and asked the physicians to “wait a minute,” but otherwise did not remember anything about the procedure except two or three periods of consciousness, of 2 or 3 seconds each, during which she felt pain.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.