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The Peer Review Privilege: A Law in Search of a Valid Policy

Published online by Cambridge University Press:  24 February 2021

B. Abbott Goldberg
B. Abbott Goldberg*
Affiliation:
McGeorge School of Law, University of the Pacific, Sacramento, California
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Abstract

The peer review privilege prevents patient-plaintiffs from obtaining the hospital records prepared in connection with quality review proceedings. The privilege, created by statute in most states, is rationalized by the need for confidentiality in promoting complete and candid peer review. In this Article, the Author argues that the privilege cannot effectively promote confidentiality since a common exception allows physicians to obtain the records when seeking judicial review of proceedings leading to their exclusion or dismissal from hospital medical staffs. More significantly, the Author notes that while the privilege began as a device to protect physicians from testifying against their will in malpractice suits—a condonation of the “conspiracy of silence”—it has evolved into a vehicle which enables hospitals to conceal the evidence of their own neglect.

Type
Articles
Information
American Journal of Law & Medicine , Volume 10 , Issue 2 , Summer 1984 , pp. 151 - 167
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1984

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References

1 Bok, S., Secrets 131 (1982)Google Scholar

2 Joint Commission On Accreditation of Hospitals, Accreditation Manual For Hospitals 151 (1983) [hereinafter cited as JCAH Manual].

3 See, e.g., Cal. Bus. & Prof. Code § 2282(c) (West Supp. 1984).

4 See JCAH Manual, supra note 2, at 151.

5 Id. at ix-xi.

6 There is no adequate history of the standardization movement. For some fragments, see Goldberg, , The Duty of Hospitals and Hospital Medical Staffs to Regulate the Qualtiy of Patient Care: A Legal Perspective, 14 Pac. L.J. 55, 66-68 (1982)Google Scholar.

7 See Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970). Bredice is the only example of judicial creation of a peer review privilege. Furthermore, the court in Bredice created only a qualified privilege which could be negated by a showing of “exceptional necessity.” Id. at 250. Although it has been frequently cited in cases involving the statutory privilege, no instance has been found where it has been followed in a case totally devoid of a statutory context. See, e.g., Memorial Hosp. v. Shadur, 664 F.2d 1058, 1062 (7th Cir. 1981); Robinson v. Magovern, 83 F.R.D. 79, 85-86 (W.D. Pa. 1979); Gillman v. United States, 53 F.R.D. 316, 318-19 (S.D.N.Y. 1971); Nazareth Literary & Benevolent Inst. v. Stephenson, 503 S.W.2d 177, 179 (Ky. 1973).

In Bredice the plaintiff could not establish exceptional necessity since the claim was based solely on the physician's negligence, which can be established without the peer review records. In contrast, in cases alleging hospital corporate liability the qualification will often be inapplicable since the peer review records may be “exceptionally necessary” to plaintiff's claims.

8 For example, in a suit against a physician a California court declined to create the privilege. Kenney v. Superior Court, 255 Cal. App. 2d 106, 63 Cal. Rptr. 84 (1967). This holding became moot within a year when the state legislature enacted the peer review privilege “in apparent response” to the Kenney decision. See Matchett v. Superior Court, 40 Cal. App. 3d 623, 629, 115 Cal. Rptr. 317, 320 (1974). Nonetheless, in a Kentucky case that was decided subsequent to the enactment of the privilege in California, the court cited Kenney and remarked that although freedom of communication among physicians and hospitals was “an initially appealing argument, on reflection, one might well debate wherein the public interest lies.” Nazareth Literary & Benevolent Inst. v. Stephenson, 503 S.W.2d 177, 179 (Ky. 1973). Within three years, the Kentucky legislature had enacted the peer review privilege. Ky. Rev. Stat. Ann. § 311.377 (Baldwin 1981); see McGuffey v. Hall, 557 S.W.2d 401, 406 (Ky. 1977). The reluctance of courts to create the privilege is best exemplified in a Wisconsin case based on hospital corporate liability in which the court ruled that since the statutory privilege was enacted after the suit was initiated, it was a matter of substance and should not be retroactively applied. Davison v. St. Paul Fire & Marine Ins. Co., 75 Wis. 2d 190, 199-201, 248 N.W.2d 433, 439 (1977) (construing Wis. Stat. Ann. § 146.38 (West Supp. 1984)). Wisconsin adhered to nonretroactive application even after a contrary case, Oviatt v. Archbishop Bergan Mercy Hosp., 191 Neb. 224, 214 N.W.2d 490 (1974), was called to its attention. Accord, Hollowell v. Jove, 247 Ga. 678, 680, 279 S.E.2d 430, 432-33 (1981); see also Shibilski v. St. Joseph's Hosp., 83 Wis. 2d 459, 465, 266 N.W.2d 264, 267 (1978); Davison v. Light, 79 F.R.D. 137, 140 (D. Colo. 1978) (court did not support retroactive application); Wesley Med. Center v. Clark, 234 Kan. 13, 669 P.2d 209 (1983) (privilege could not be created by administrative regulation). In short, without a statute, courts have not created a privilege.

9 C. Mccormick, Evidence § 75, at 181 (3d ed. 1984). The statutes vary widely in detail, so each case involving a statutory privilege must be read with the particular statute in mind. Furthermore, records must be categorized to determine whether or not they emanate from a privileged source. The following examples will underscore the need to scrutinize the records in question: the records of hospital administrators, as distinguished from the records of the medical staff committee, are not privileged, see, e.g., Matchett v. Superior Court, 40 Cal. App. 3d 623, 628, 115 Cal. Rptr. 317, 320 (1974); records made voluntarily, rather than at the insistence of the committee to which they were presented, are not privileged, see, e.g., Marchand v. Henry Ford Hosp., 398 Mich. 163, 168, 247 N.W.2d 280, 282 (1976); even if the records are prepared at the insistence of a committee, they are not privileged unless they relate to the performance of a peer review function. For example, in several cases courts have excluded the records of credentials committees and tissue committees from evidence, see, e.g., Malchett, 40 Cal. App. 3d at 630-31, 115 Cal. Rptr. at 321-22; Mennes v. South Chicago Community Hosp., 100 111. App. 3d 1029, 1032, 427 N.E.2d 952, 954 (1981) (staff appointment materials were excluded); Burnside v. Foot Clinics, 115 Misc. 2d 85, 87, 453 N.Y.S.2d 311, 313 (Sup. Ct. 1982) (credentials committee records were excluded), whereas the records of an infection committee were not deemed privileged in a case where the court found that the committee does not “evaluate hospital policy generally, but presumably is called upon only when an infection problem exists,” Davidson v. Light, 79 F.R.D. 137, 140 (D. Colo. 1978). Where records are privileged only if used for utilization review under the Social Security Act, the hospital claiming the privilege must show that they were used for this purpose. See Sherman v. District Court, 637 P.2d 378, 382 (Colo. 1981). While hospital “guidelines” were excluded from evidence at trial, the records were not immunized from discovery. See Kalish v. Mount Sinai Hosp., 270 N.W.2d 783, 786 (Minn. 1978). This result is in conformity with the general rule that discovery is not limited to admissible evidence but rather extends to the discovery of information that is “reasonably calculated to lead to the discovery of admissible evidence.” See, e.g., Fed. R. Civ. P. 26(b)(1); Cal. Civ. Proc. Code §§ 2016(b), 2031(a) (West 1983). Conversely, the fact that records are privileged from pretrial discovery does not require that they be excluded at trial. Thus, it may be possible for a patient to obtain the records by subpoena at trial even if these records were not discoverable. See Loveridge, & Kimball, , Hospital Corporate Negligence Comes to California: Questions in the Wake of Elam v. College Park Hospital, 14 Pac. L.J. 803, 832-33 (1983)Google Scholar. If the statutes prohibiting use of peer review materials in evidence were applied literally, a hospital could not use them to show that it had exercised due care.

10 Code of Civil Procedure, Ill. Ann. Stat. ch. 110, §§ 8-2101 to 8-2105 (Smith-Hurd 1984) (originally enacted as Medical Studies Act, Ill. Rev. Stat. ch. 51, §§ 101-103 (1981)).

11 See Matchett v. Superior Court, 40 Cal. App. 3d. 623, 629, 115 Cal. Rptr. 317, 321 (1974) (since liability for corporate negligence had not yet been established in California, “[t]he statute, then, is aimed directly at malpratice actions in which a present or former hospital staff doctor is a defendant“); Minn. Stat. Ann. §§ 144.50, 145.61, 145.64 (West 1970 & Supp. 1984) (Minnesota statute makes privilege applicable only in a civil action “against a professional,” which would be seen to expressly exclude hospitals since “professional” is defined in other Minnesota statutes as a “person licensed to practice a healing art” and hospitals are forbidden “to engage, in any manner, in the practice of healing or the practice of medicine“). A similar limitation was eliminated at the insistence of the Hospitals Association of Pennsylvania. See Comment, Medical Peer Review Protection in the Health Care Industry, 52 Temp. L. Q. 552, 553 n.5 (1979); House Bill 1365, 82D Illinois General Assembly (1981), Transcription of House

Debate May 17, 1981, at 82 (legislative history when the original Illinois bill was amended states that the purpose was “to provide some protection and immunity to physicians who are involved in the medical research and serve on committes,” and to change the result of Walker v. Alton Memorial Hosp. Ass’n, 91 Ill. App. 3d 310, 313-14, 414 N.E.2d 850, 852-53 (1981) (prohibition on use in evidence does not prevent discovery). No reference to the problem of hospital corporate negligence or to support by the Joint Commission on Accreditation of Hospitals has been found; Darling v. Charleston Community Memorial Hosp., 33 Ill. 2d 326, 211 N.E.2d 253 (1965), aff’g 50 Ill. App. 2d 253, 200 N.E.2d 149 (1964), cert. denied, 383 U.S. 946 (1996) (This case, commonly considered the leading case in the creation of corporate negligence of hospitals for appointing or retaining incompetent staff members on their medical staffs, did not refer to the Illinois peer review statute for support, even though the statute was on the books.).

12 IIa Hospital Law Manual Records 77-102 (Mar. 1984). In addition see D.C. Code Ann. § 32-505 (1981), which creates a conditional privilege “[a]bsent a showing of extraordinary necessity.” Massachusetts may be an exception, for the privilege there extends only to reports to the Board of Registration in Medicine. Mass. Gen. Laws Ann. Ch 111, § 53B (West 1983).

If peer review records other than the reports to the Board are otherwise available in Massachusetts, it would be hard to show that the quality of patient care there has suffered by absence of the peer review privilege. Nobody has been able to show that the quality of medical care has been affected by the absence of the physician-patient privilege. See Chafee, , Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale L.J. 607, 609, 616 (1943)Google Scholar; Ladd, , A Modern Code of Evience, in Model Code of Evidence 329, 345-46 (1942)Google Scholar; Morgan, , Foreword to Model Code of Evidence 1, 29-30 (1942)Google Scholar.

13 Bredice v. Doctors Hosp., 50 F.R.D. 249, 250 (D.D.C. 1970), motion reargued and denied, 51 F.R.D. 187 (D.D.C. 1970), aff’d mem., 479 F.2d 920 (D.C. Cir. 1973).

14 Holbrook, & Dunn, , Medical Malpratice Litigation: The Discoverability and Use of Hospitals’ Quality Assurance Committee Records, 16 WASHBURN L.J. 54, 76 (1976)Google Scholar.

15 See Alaska Stat. § 18.23.030 (1981); Ariz-. Rev. Stat. Ann. § 36-445.01A (Supp. 1983); Cal. Evid. Code § 1157 (West Supp. 1984); Colo. Rev. Stat. § 12-43.5-102(3)(e) (1978); Hawaii Rev. Stat. §624-25.5 (Supp. 1983); Indiana Code Ann. § 34-4-12.6-2(b) (Supp. 1983); K.Y. Rev. Stat. Ann. § 311.377(6) (1983); Or. Rev. Stat. § 41 675(5) (1984); Wash. Rev. Code Ann. § 4.24.250 (West Supp. 1983). But cf. Mich. Comp. Laws Ann. § 333.21515 (West 1980), which creates an absolute privilege but was held inapplicable when the physician's state claim was pendent to a federal claim. The court reasoned that the state statute cannot be applied when it will serve to prevent a plaintiff from establishing a valid federal claim. Dorsten v. Lapeer County General Hosp., 88 F.R.D. 583 (E.D. Mich. 1980). See infra notes 29, 35, 54.

16 See, e.g., Spencer v. Community Hosp., 87 Ill. App. 3d 214, 216, 408 N.E.2d 981, 984 (1980). For a collection of the conflicting cases on the reviewability of private hospital action, see Jain v. Northwest Community Hosp., 67 111. App. 3d 920, 385 N.E.2d 108 (1978). The various theories supporting review are outlined in Note, Hospital Medical Staff: When are Privilege Denials Judicially Reviewable, 11 U. Mich. J.L. Ref. 95 (1977).

17 Code of Civil Procedure, Ill. Ann. Stat. ch. 100, § 8-2101 (Smith-Hurd 1984).

18 Schulz v. Superior Court, 66 Cal. App. 3d 440, 446, 136 Cal. Rptr. 67 (1977).

19 Id.

20 After this Article was written an Illinois court attempted to resolve this paradox by holding that the peer review privilege violated the Equal Protection clauses of both the United States and Illinois Constitutions. The trial court concluded that patient-plaintiffs and physician-plaintiffs are similarly situated; that in actions brought by either, the issue is whether the hospital has supervised the delivery of health care in accordance with accepted community standards; and that therefore the privilege “arbitrarily and unreasonably discriminates against” patient-plaintiffs. The Supreme Court of Illinois reversed, stating:

Contrary to the trial court's assertion, the issue in a due process challenge to revocation of staff privileges is not the same as the issue in a medical malpractice action. When a violation of due process is alleged, the inquiry centers on the fundamental fairness of the proceedings. Thus, information concerning the committee meeting becomes essential to the physician's claim. Further, if a physician were denied information relating to the reason for his dismissal, he would be unable to challenge an adverse decision.

Jenkins v. Wu, 468 N.E.2d 1162, 1167-68 (111. 1984). The court also reviewed the legislative history of the privilege and concluded that the statute represents a legitimate attempt by the legislature to “promote quality health care by encouraging physicians to police themselves.” Id.

21 The privilege and its exception is said to be part of a “legislative scheme” to afford a doctor “the opportunity to seek an effective judicial review.” Henry Mayo Newhall Memorial Hosp. v. Superior Court, 81 Cal. App. 3d 626, 635, 146 Cal. Rptr. 542, 547 (1978). What this means, of course, is effective judicial review without the risk of supplying evidence to the plaintiff-doctor's patients.

22 Note that the privilege is not necessary to protect the reviewing peers from damage actions by their disappointed fellows. Many states have statutes providing at least some degree of immunity to the reviewing peers—an immunity analagous to that provided for judges for their judicial conduct. See, e.g., Stump v. Sparkman, 435 U.S. 349 (1978) (judge not personally liable for erroneous sterilization order when acting within his jurisdiction). But these immunities are beyond the scope of this paper, and are mentioned only to avoid confusion between them and the privilege. The peer review privilege is something in addition to and independent of immunity.

23 Franco v. District Court, 641 P.2d 922, 928 (Colo. 1982); cf., Westlake Community Hosp. v. Superior Court, 17 Cal. 3d 465, 485, 551 P.2d 410, 422, 131 Cal. Rptr. 90, 102 (1976) (physician must “exhaust all available internal remedies before instituting any judicial action“).

24 Code of Civil Procedure, Ill . Ann. Stat. ch. 110, § 8-2101 (Smith-Hurd Supp. 1984). The former statute created a broader exception. See section 1 of the Medical Studies Act, Ill. Rev. Stat. ch. 51, § 101 (Smith-Hurd 1981) (current version at Ill. Ann. Stat. ch. 110, §8-2101 (Smith-Hurd 1984)).

25 81 Cal. App. 3d 626, 146 Cal. Rptr. 542 (1978).

26 Id. at 630; 146 Cal. Rptr. at 544.

27 “The prohibition relating to discovery or testimony shall not apply … to any person requesting hospital staff privileges … .” Cal. Evid. Code § 1157 (West Supp. 1984).

28 81 Cal. App. 3d at 635, 146 Cal. Rptr. at 547. See supra note 18.

29 This anomaly has been avoided in the federal courts. For instance, when a federal claim is joined with a pendent state claim in a single case, as where a doctor claims that the denial of staff privileges violates both federal and state antitrust laws, the peer review privilege has been denied as unrecognized by federal law. Furthermore, since the evidence has been admitted, the privilege has been denied with regard to the state claim. To allow the privilege would require the trier of fact to ignore the admitted evidence—a process that has been characterized as both “meaningless” and “unworkable.” See Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061 n.3 (7th Cir. 1981) (peer review privilege); Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3rd Cir. 1982) (accountant-client privilege); see also Dorsten v. Lapeer County General Hosp., 88 F.R.D. 583 (E.D. Mich. 1980).

30 “Once confidentiality is broken, the basic purpose of the privilege is defeated.” Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455, 458 (N.D. Cal. 1978).

31 Dickens, C., The Adventures of Oliver Twist ch. 51 (1837-1838)Google Scholar.

32 Fed. R. Evid. 501.

33 Memorial Hosp. v. Shadur, 664 F.2d 1058 (7th Cir. 1981).

34 Shadur, 664 F.2d at 1063; accord Robinson v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979).

35 Dorsten v. Lapeer County General Hosp., 88 F.R.D. 583, 586 (E.D. Mich. 1980).

36 Id. at 586.

37 Ott v. St. Luke Hosp., 522 F. Supp. 706 (E.D. Ky. 1981).

38 Id. at 710 (quoting American Civil Liberties Union v. Finch, 638 F.2d 1336 (5th Cir. 1981) which mentioned that the four conditions were first adduced by Wigmore); see 8 J. WIGMORE, EVIDENCE § 2285, at 527 (McNaughton rev. 1961); see also Holbrook & Dunn, supra note 14, at 66 n.58.

39 Ott, 522 F. Supp. at 711.

40 Id. Although perhaps there is some merit in the hospital's contention that incompetent physicians may be more easily excluded or removed from medical staffs if the privilege is recognized, it may also be that a potential Pasteur, Lister or Semmelweis, who advocates salutary changes in procedures, may be excluded simply because he “makes waves.“

41 Robinson v. Magovern, 83 F.R.D. 79, 89-92 (W.D. Pa. 1979). At least one statute requires anonymity. Wis. Stat. Ann. § 146.38(3) (West Supp. 1983-1984). It would be hard to argue that the California statute is concerned with patients’ privacy, unless it is concerned with the privacy of pets, because it was amended in 1982 to include veterinarians. Cal. Evid. Code § 1157 (West Supp. 1984); Cal. Civ. Code § 43.8 (West Supp. 1983) (no liabilty for disclosure to peer review committees despite physician-patient privilege).

42 Fed. R. Evid. 501 provides that “[i]n civil actions and proceedings with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of witness, person, government, state or political subdivision thereof shall be determined in accordance with state law.” See, e.g., Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981) (certification by federal court to state court to ascertain state law on peer review privilege).

43 See, e.g., Davidson v. Light, 79 F.R.D. 137, 140 (D. Colo. 1978).

44 Morgan, supra note 12, at 3-4; see also Thayer, J., A Preliminary Treatise On Evidence At The Common Law 271 (1898)Google Scholar. “In dealing with litigation, courts are not engaged in an academic exercise. With them the search for truth is not the main matter; their desire to know this, and their ability to use it, are limited by the requirements of their main business, namely that of awarding justice, i.e., awarding it so far as they may under the rules of law, and according to established usages and forms.” See also id. at 274, 275, 508. “The law has no mandamus to the logical faculty.” Id. at 313 n . l , 314.

45 J. Levine, Discovery 7 (1982); see also id. at vi.

46 Morgan, supra note 12, at 7.

47 Easterbrook, , Insider Trading, Secret Agents, Evidentiary Privileges, and the Production of Information, 1981 Sup. Ct. Rev. 309, 361Google Scholar. On malpractice actions as a regulatory device, see infra note 50.

48 “To say that a physician … will not stand by his professional opinion of a colleague's action in the event of subsequent litigation unless he is guaranteed anonymity and immunity is to say, in effect, that physicians are unwilling or unable to police their own ranks—or that the universally denied ‘conspiracy of silence’ in fact exists.” Dunn, , Peer Review: A Secret Affair?, 31 Trustee 10 (1978)Google Scholar. Justice Stevens, for one, has recognized the continuing “conspiracy of silence.” United States v. Kubrick, 444 U.S. 111, 128-29 & n.4 (1979) (Stevens, J. dissenting). See also Kelher, The Medical Conspiracy of Silence, 87 Case & Com., July-Aug. 1982, at 10.

49 Although the state statutes vary in language, they all have this purpose in common. The following are examples of the various statutes: peer review materials are “privileged, strictly confidential and shall be used only for medical research,” Code of Civil Procedure, Ill. Ann. Stat. ch. 110, § 8-2101 (Smith-Hurd Supp. 1984); forbidding use in evidence but silent as to pre-trial discovery, Minn. Stat. Ann. § 145.65 (West Supp. 1984); forbidding pre-trial discov ery but silent as to use in evidence, Cal. Evid. Code § 1157 (West Supp. 1983). At least two statutes create only a conditional rather than absolute privilege. D.C. Code Ann. § 32-505 (1981) (privileged “absent a showing of extraordinary necessity“); Me. Rev. Stat. Ann. tit. 32, § 3296 (West 1978) (“exempt from discovery without a showing of good cause“). Some of these and other variations are discussed supra note 9.

50 Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 826, 165 Cal. Rptr. 477, 487 (1980) (citing Father & Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 Yale L.J. 1488, 1499 (1978)). “[M]alpractice litigation may help rather than hinder the quality of medical care delivered.” Freidson, , Medical Personnel: Physicians, 10 Int'l Encyclopedia of Social Sciences 112 (1968)Google Scholar. Furrow, , Iatrogenesis and Medical Error: The Case for Medical Malpractice Litigation, 9 Law, Medicine & Health Care 4 (1981)Google Scholar.

51 City & County of San Francisco v. Superior Court, 37.Cal.2d 227, 232, 231 P.2d 26, 28 (1951). The peer review privilege can also be distinguished from other recognized privileges such as the attorney-client privilege or the work-product doctrine, since these other privileges relate to the voluntary collection of information, while the peer review records are required by law. See, e.g., Cal. Bus. & Prof. Code § 2282(c) (West Supp. 1984); Cal. Adm. Code tit. 22, R 70701(a)(1)(F) (1983). The records are required as part of the duty assumed by hospitals when they contain accreditation by the Joint Commission and thereby undertake “to deliver patient care that is optimal within available resources and consistent with achievable goals” and to “enhance patient care.” JCAH Manual, supra note 2, at 151 (1983) (discussing hospital's duties); see also id. at 106 (discussing medical staff duties).

52 8 J. Wigmore, supra note 38, § 2286 at 532, 536; Holbrook & Dunn, supra note 14, at 66-67.

53 Richards & Silvers, Risk Management Theory: Reducing Liability in Corporate and Medical Environments, 19 Hous. L. Rev. 251, 259 n.29, (citing Schwartz, & Komesar, , Doctors, Damages and Deterrence, 298 New Eng. J. Med. 1282 (1978))Google Scholar.

54 Cousins, Malpractice—With or Without Insurance, Sat. Review, Mar. 20, 1976, at 4. “Plaintiff notes that the statutory [peer review] privilege is relatively new legislation enacted in apparent response to increased medical malpractice litigation … .” Dorsten v. Lapeer County General Hosp., 88 F.R.D. 583, 585 (E.D. Mich. 1980).

55 33 Ill. 2d 326, 211 N.E.2d 253 (1965).

56 See generally Southwick, A., The Law of Hospital And Health Care Administration 412 (1978)Google Scholar; Note, Hospital Corporate Liability: An Effective Solution to Controlling Private Physician Incompetence, 32 Rutgers L. Rev. 342 (1979).

57 Darling, 33 III. 2d at 333, 211 N.E.2d at 258.

58 See, e.g., Tucson Med. Ctr. v. Misevch, 113 Ariz. 34, 545 P.2d 958 (1976) (a hospital has a duty to supervise the competence of staff physicians); Mitchell County Hosp. Authority v. Joiner, 229 Ga. 140, 189 S.E.2d 412 (1972) (hospital must screen qualifications of applicants for staff membership); Ariz. Stat. Ann. §36-445 (1974); Ind. Code Ann. § 16-10-1-6.5 (Burns 1983); Mich. Comp. Laws § 333.2153 (1980).

59 See infra notes 60-82 and accompanying text. The first appellate decision on hospital corporate negligence in California did not involve access to peer review records. Elam v. College Park Hosp., 132 Cal. App. 3d 332, 183 Cal. Rptr. 156 (1982). Plaintiff's counsel had had three prior cases against the allegedly deficient staff member, and the hospital admitted knowing of at least one of these. The hospital's motion for summary judgment on the ground that it did “not owe its patients a legal duty to exercise reasonable care in selecting, reviewing and periodically evaluating the competency of physicians and podiatrists it permits to treat patients within its facilities was denied. 132 Cal. App. 3d at 338, 183 Cal. Rptr. at 159. Since Elam there have been at least four discovery cases in which the peer review privilege has been asserted successfully: West Covina Hosp. v. Superior Court, 153 Cal. App. 3d 134, 200 Cal. Rptr. 162 (1984); Snell v. Superior Court, 158 Cal. App. 3d 44, 204 Cal. Rptr. 200 (1984); Saddleback Community Hosp. v. Superior Court, 158 Cal. App. 3d 206, 204 Cal. Rptr. 598 (1984) (trial court to hold ex parte in camera hearing to segregate admissible materials if any); and Mt. Diablo Hosp. Medical Center v. Superior Court, 158 Cal. App. 3d 344, 204 Cal. Rptr. 626 (1984). These decisions are based on the proposition that the “Legislature has made the judgement call” that the suppression of “very material and admissible evidence” serves an “even more important societal interest.” West Covina Hosp., 153 Cal. App. 3d at 138, 200 Cal. Rptr. at 165. These decisions, however, do not suggest what the intterest is nor how the legislature reached its judgment years before there was a legal theory making the evidence material and admissible.

60 No. 228566, slip op. (Superior Ct. Cal., Sacramento County, Nov. 19, 1973). The hospital did not appeal but paid its share of the judgment. The denial of Dr. Nork's belated request for a jury trial was affirmed. Gonzales v. Nork, 20 Cal. 3d 500, 573 P.2d 458, 143 Cal. Rptr. 240 (1978); see also A. Southwick, supra note 56, at 421 n.188 (1978); Iia Hospital Law Manual, Medical Staff ¶ 1-1, at 5 (Mar. 1979). Much of the trial court opinion is reprinted in S. Law & S. Polen, Pain & Profit: The Politics of Malpractice 215-45 (1978).

61 A. Southwick, supra note 56, at 421-22.

62 S. Law & S. Polen, supra note 60, at 65. But see A. Southwick, supra note 56, at 422.

63 See American Mutual Liability Ins. Co. v. Superior Court, 38 Cal. App. 3d 579, 113 Cal. Rptr. 561 (1974).

64 S. Law & S. Polen, supra note 60, at 52; see also A. Southwick, supra note 56, at 422. But in retrospect, as author of the Nork opinion, I now view it not only as a case of absence of inadequate procedures but also as a case of failing to use the procedures that were available. See Goldberg, supra note 6, at 75.

65 For example, Bok refers to a Boston newspaper editorial on the case in her discussion of lying because of fidelity to colleagues. “There can be no excuse for lying to protect anyone who places patients at such risk.” Bok, S., Lying 155 (1978)Google Scholar. See Sheridan, Why the Lawyers Caught Nork and the Doctors Didn't, Medical Economics, July 22, 1974, at 91.

66 See generally Miofsky v. Superior Court, 703 F.2d 332 (9th Cir. 1983).

67 Owens, The 10 Most Bizarre Sex Crimes of the 20th Century, Penthouse, May 1982, at 68, 70.

68 703 F.2d 332, 334. The figure may be wrong. The newspaper accounts refer to 158 and 159 plaintiffs’ cases, and in some instances husbands had joined as plaintiffs with their victimized wives. Thus, there may have been closer to eighty instances of fellatio.

69 Sacramento Bee, Aug. 22, 1979, at Al, col. 3.

70 Sacramento Union, Mar. 5, 1983, at CI, col. 5.

71 Saramento Bee, Apr. 6, 1979, at Al, col. 3.

72 Id., July 4, 1979, at Al, col. 1.

73 Price, Investigator's Report to Special Committee to Investigate Miofsky Affair—Sutter Memorial Hospital 10, 11 (June 29, 1979); See also Sacramento Bee, July 4, 1979, at A20, col. 6.

74 O'Kane v. Board of Registered Nursing, No. 3 Civ. 19616, slip op. at 16, 19 (Cal. Ct. App. Apr. 1, 1982). Since O'Kane was not published, it cannot be cited as precedent. Cal. Rules of Court 977 (West 1984) The administrative proceedings are still pending.

75 See Holbrook & Dunn, supra note 14.

76 Price, supra note 73, at 6-7.

77 California Hospital Association, Consent Manual 235 (10th ed. 1978); Sierra Vista Hosp. v. Superior Court, 248 Cal. App. 2d 359, 56 Cal. Rptr. 387 (1967). This is the practice recommended in A. Southwick, supra note 56 at 303, 382-83. Colorado, despite Southwick's admonition, has continued to allow discovery of incident reports if the procedure is not tailored to come within the attorney-client or work-product privileges. Kay Laboratories v. District Court, 653 P.2d 721 (Colo. 1982).

78 San Francisco Chronicle, Mar. 8, 1982, at 4 cols. 2-3.

79 Surgical Trauma in California, Time, July 20, 1981, at 72.

80 Sacramento Bee, Apr. 15, 1982, at Al, col. 6.

81 Sacramento Bee, Oct. 16, 1982, at Al, col. 1, A14, cols. 5-6.

82 Richards & Silvers, supra note 53, at 265. “The delayed acceptance of new legal theories results in a period where the riskor is potentially liable for the consequences of the risks affected by the new theory … .” Id. at 264. The opposite is true of the acceptance of hospital corporate negligence. Due to the peer review privilege there is now a period of low risk of liability despite the new legal theory.

83 Gonzales v. Nork, No. 228566, slip op. at 47-48 (Sup. Ct. Cal., Sacramento County, Nov. 19, 1973); S. Law & S. Polen, supra note 60, at 224 (citing W. Prosser, Torts § 76, at 501-02 (4th ed. 1971)). This was the incident of the pathologist who failed to report foreign bodies and spinal nerve fibers, in tissue removed by Dr. Nork during a laminectomy, because the pathologist thought “anyone is entitled to one mistake or questionable judgment.” Nork, slip. op. at 47; S. Law & S. Polen, supra note 60, at 223.

84 “Successful frauds cannot be readily observed … .” Clark, , Does the Nonprofit Form Fit the Hospital Industry?, 93 Harv. L. Rev. 1416, 1462-63 (1980)Google Scholar. I apologize for once thinking this is a laughable platitude. I now realize it is a terse statement of the fundamental truth that the frauds that are successful are those that cannot be discovered.

85 Bok, S., Secrets 135 (1982)Google Scholar.

86 This fear is unjustified. Given the hearsay nature of the peer review records, they frequently would be inadmissible even in the absence of the peer review privilege. These records would not fall within the business records exception to the rule against hearsay since they do not meet the general requirements that they be prepared “at or about” the time of the event. For a more general discussion of the discoverability of peer review records, see Holbrook & Dunn, supra note 14.

87 There are statutes that make the physician-patient privilege conditional or qualified. N.C. Gen. Stat. § 8-53 (1981); Va. Code § 8.01-399 (1984). In addition, California has a form of the “good cause exception” to the physician-patient privilege based, in part, on these statutes. Cal. Evid. Code § 999 (West Supp. 1984); 12 Cal. L. Revision Comm'n Rep. 605-08 (1974). These statutes do not seem to have aroused controversy, and their extension to other states has been suggested. C Mccormick, supra note 9, § 105 at 227-28. As originally proposed, the New York State Law Revision Commission would have restricted an exception to the physician-patient privilege to cases where the patient “relies upon the condition as an element of a claim or defense.” N.Y. Law Revision Comm'n, Proposed Code of Evidence § 504(d)(3) commentary at 78 (1980). This was criticized as unduly inflexible. Note, Patient Testimonial Privileges Under the Proposed Code of Evidence for New York, 45 Alb. L. Rev. 773, 787-88 (1981). And in the version submitted to the legislature the exception was expanded to add: “or in which the interests of justice require disclosure of the communication.” N.Y. Law Revision Comm'n Code of Evidence Submitted To The 1982 Session of The Legislature § 509 commentary at 102 (1982). of course, allowing discretion to courts is less than totally reassuring. “An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” Upjohn Co. V. United States, 449 U.S. 383, 393 (1981) (attorney-client privilege). But when patient care is at stake, even a “little better” is better than nothing at all.

88 D.C. Code Ann. § 32-505 (1981); see also Me. Rev. Stat. Ann. tit. 32, § 3296 (1978) (“exempt from discovery without a showing of good cause“). An Arizona statute allowed the information obtained by a medical staff review committee, but not its “reflective deliberation[ s],” to be subpoenaed for review by the trial judge for relevance. Tucson Medical Center v. Misevch, 113 Ariz. 34, 37, 545 P.2d 958, 961 (1976). The statute has since been amended to allow representatives of a hospital to testify “whether there was peer review” but to make the “contents and records of the peer review proceedings … fully confidential and inadmissible … .” Ariz. Rev. Stat. Ann. § 36-445.01, B, 1982 Ariz. Legis. Serv. 692 (West). Legislative reluctance to create an absolute privilege is described as a “pervasively negative atttitude toward screening pertinent evidence from view” and dismissed as “deleterious” in Note, The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083, 1099 (1983). The note argues for the non-discoverability of “factual data that are neither independently replicable nor verifiable.” Id. at 1095. But this is just the sort of factual information that was disclosed in Tucson Medical Center, and which must be disclosed if the peer review privilege is not to swallow up corporate negligence in cases that fall short of public scandal.