By Maria Greco Danaher, Ogletree Deakins (Pittsburgh)

The production of otherwise-confidential documents in employment discrimination cases continues to be addressed by federal courts at an increasing rate.  The issue typically pits state-law protection for “peer review” documents against federal anti-discrimination laws and regulations, and has generated growing controversy among health care providers who routinely rely on the state-law protection afforded to such information.  A federal district court in Michigan recently addressed a plaintiff/physician’s discovery subpoena to a non-party hospital for peer review records of “similarly situated” physicians, and granted that hospital‘s motion to quash the subpoena.  The court skirted the issue of state-law peer review protections, however, by simply finding that the documents requested were “not relevant” in the discovery phase of the case.  Zamorano v. Wayne State University, E.D. Mich., No. 07-12943, Aug. 1, 2008.

Lucia Zamorano filed a lawsuit, claiming that she was terminated from her employment with Wayne State University (WSU) and with the University Neurological Surgeons (UNS) because of her gender.  In the course of that legal action, Zamorano issued a subpoena to non-party POH Medical Center seeking peer review records for a number of UNS-related physicians, some of whom had been granted hospital privileges by POH.  (Peer review records include information related to the doctor’s application for professional privileges, as well as the hospital’s determination regarding that application.)  POH objected to the production of those records, arguing that such information was not relevant to Zamorano’s claims.

The court agreed with POH and granted the motion to quash.  However, its decision was not based upon any specific state-law peer review protection, but rather on the scope of the applicable federal rule.  

Zamorano alleges that she was treated differently than male physicians who were similarly situated to her.  She requested peer review documents from POH in an attempt to affirmatively prove that she was as qualified or more qualified than the male doctors who were not terminated by WSU and UNS.  Under the applicable federal rule – Federal Rule 26(b)(1) – parties may obtain any information that is “relevant” to that party’s claim.  Such information does not, on its own, have to be admissible at trial, so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.”

The court reviewed Zamorano’s claims, reviewed the scope of the request for information from POH, and determined that the documents sought would not lead to admissible evidence.  The court specifically stated that in order to prove discrimination, Zamorano would have to prove how WSU and UNS viewed the qualifications of the other doctors when WSU and UNS made determinations to hire or granted privileges to them.  Information considered by other hospitals regarding the qualifications of those individuals would not be relevant, even under the broad scope of Rule 26(b)(1) and, therefore, POH’s motion to quash the subpoena was granted.

This decision once again adds to the confusion generated by the intersection of federal anti-discrimination laws and state-law protections for peer review information.  Although the court made its decision based upon the wording of the applicable federal rule, it did not ignore the sensitive nature of peer review records.  The court stated that the “shield of confidentiality” that normally protects peer review documentation “justifies greater caution for the Court in exercising its discretion regarding exposing the records to public scrutiny.”  Such language indicates an awareness of the importance of the state-law protections, and a willingness to protect the documentation when necessary, as in this case. 

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