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Court Clears Disclosure of Doctor Peer Reviews

By Pamela A. MacLean

Confidential physician peer reviews may be disclosed to plaintiffs in federal discrimination and antitrust cases in three federal circuits, even though all 50 states and the District of Columbia recognize a privilege against disclosure of the performance ratings. This growing federal-state divergence will make federal courts more attractive to plaintiffs filing civil rights suits involving doctors, attorneys say. At the same time, it may have a chilling effect on peer review participant candor and on the ability of health care facilities to recruit peer review team members.

The Eleventh U.S. Circuit Court of Appeals in a June 12 opinion became the third circuit court to refuse to recognize a privilege against discovery of records containing performance reviews of one doctor by peers. Adkins, v. Christie, No. 06-13107. The court joins the Fourth and Seventh circuits. 'The decision takes a very expansive view of discovery at the expense of public policy considerations,' according to Kevin E. Grady, of Alston & Bird in Atlanta, who wrote an amicus brief supporting the privilege on behalf of the Georgia Hospital Association. 'This is not a happy day for the medical community,' he said.

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