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Univ. of South Carolina School of Law

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Wednesday, July 15, 2009

In The Maine: District Of Maine Refuses To Apply Maine's Peer Review Privilege In Disparate Treatment Case

Federal Rule of Evidence 501 provides that

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in 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 a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

What this means, as is made clear by the recent opinion of the United States District Court for the District of Maine in Thayer v. Eastern Maine Medical Center, 2009 WL 1686673 (D.Me. 2009), is that when a plaintiff brings federal claims against a defendant in a federal court located in a particular state, the court is not bound by the state's rules of privilege.

In ThayerKristine Thayer, formerly a physician with Eastern Maine Medical Center (EMMC), sued her former employer, alleging gender discrimination and whistleblower retaliation, based on, among other things, disparate treatment in connection with the medical peer review process set forth in the Maine Health Security Act. To prove these claims, Dr. Thayer sought to discover all of the records and documents generated in connection with peer review proceedings associated with her professional competence. She also sought to discover all of the records collected with regard to peer review or evaluation of Dr. Mohammad Tabbah, a physician with a similar professional practice area who received, according to Dr. Thayer, significantly better working conditions, privileges, and treatment in general from EMMC than she did, for no apparent reason other than his sex or gender. EMMC and Dr. Tabbah objected to these discovery requests, claiming that peer review records were subject to confidentiality pursuant to Subchapter 1 of the Maine Health Security Act, 24 M.R.S. Section 2510-A, which provides in relevant part that

[A]ll professional competence review records are privileged and confidential and are not subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and are not admissible as evidence in any civil, judicial or administrative proceeding. Information contained in professional competence review records is not admissible at trial or deposition in the form of testimony by an individual who participated in the written professional competence review process. 

But the problem for the defendants was that Dr. Thayer raised federal claims, meaning that the District of Maine did not need to apply this "peer review privilege" pursuant to Federal Rule of Evidence 501, which the court construed as "ensur[ing] that, where federal claims are concerned, state law privileges will not override the public's 'right to every man's evidence,' unless the privilege 'promotes sufficiently important interests to outweigh the need for probative evidence.'" 

And, in the case before her, Magistrate Judge Margaret Kravchuk concluded,

I am not persuaded by the argument that the truth-seeking process served by civil discovery should give way to a medical peer review privilege, particularly as the Court has the power to restrict further dissemination of materials beyond what is necessary for the presentation of evidence at trial. I recognize that some federal district courts have recognized the privilege, as cited in the defendants' written support for its objection..., but I agree with the rationales expressed by the Courts of Appeals for the Fourth, Seventh, and Eleventh Circuits that the presumption against privileges is not overcome when the medical peer review privilege is weighed against the discovery of evidence necessary to support the potential vindication of important federal rights, such as the rights protected by Title VII of the Civil Rights Act of 1964, and that the interests served by the privilege can be preserved through means falling short of a total ban on discovery.

Therefore, she "overrule[d] the defendants' objections to the plaintiff's first and seventeenth requests for production, both of which discovery initiatives are necessary to demonstrate Dr. Thayer's claim that EMMC subjected her and Dr. Tabbah to disparate treatment based on gender."

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/07/peer-review-privilege-gender-discrimthayer-v-easternmaine-medical-centerslip-copy-2009-wl-1686673dme2009.html

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